“Scooter” Libby's lawyers are heading to court to try and get the charges against him thrown out thrown out. If not, they are hoping to get access to classified documents they say will help show how busy he was at the time he was talking about CIA agent Valerie Plame.
Libby's lawyers say they need between three and 500 more classified documents to defend their client against charges he lied to the FBI and a grand jury about conversations with regard to Plame.
They also want the indictment dropped, saying special prosecutor Pat Fitzgerald's appointment was unconstitutional. For his part, Fitzgerald says Libby's document requests are "a transparent at graymail," a term prosecutors use when a defendant demands government secrets they believe in an effort to get the government to drop the case rather than let those secrets go public.
David Shuster, correspondent for MSNBC's “HARDBALL,” Aitan Goelman, former federal prosecutor and Curt Levey, general counsel for the Committee for Justice and host of the radio program “Talking Politics and Law” joined ‘The Abrams Report’ Friday to discuss the recent developments in the case.
To read an excerpt from their conversation, continue to the text below. To watch the video, click on the "Launch" button to the right.
DAN ABRAMS, HOST, ‘ABRAMS REPORT’: David, so what's going on? What's the latest?
DAVID SHUSTER, MSNBC “HARDBALL” CORRESPONDENT: Well Dan, the hearing is still going on, but the judge has already given every indication that he is going to rule against “Scooter” Libby's request for the presidential daily briefs, essentially, the PDBs. These are the same documents that the 9-11 Commission had to struggle to get from the White House.
The judge even said and again what “Scooter” Libby is trying to do is he's trying to show the nature of the information that he was having to deal with at the time and that therefore he couldn't exactly remember something minor like Valerie Plame. What the judge said today is he said if I order this, it is going to sabotage the ability of this case to go forward.
The judge even referred to the vice president once describing the PDBs as these are the family jewels. So again we're expecting the judge to eventually rule against “Scooter” Libby on that particular issue. But Libby did get a victory on another issue that prosecutors had opposed and that is the government in this case has already produced 250 pages of handwritten notes that “Scooter” Libby—essentially notes to himself and memos around the time period of July, June 2003, around the time period of the Valerie Plame leak.
Libby's lawyer had said no, he wants every note from a 10-month period, because they want to be able to show what was on “Scooter” Libby's mind after the leak but before “Scooter” Libby allegedly lied to the FBI, lied to the grand jury. The government opposed this, saying this is going to gum up the trial, it may push back the trial date, beyond even January of 2007, but the judge said no, “Scooter” Libby is entitled to his handwritten notes. The prosecution said but we don't have these notes.
We'll have to get them from the White House. We'll have to transcribe them, but the judge said well I'm ruling against you. “Scooter” Libby is entitled to these handwritten notes over the 10-month period that he wants. One other issue, Dan, that was very interesting and that is there's been some filings in the case about the status of the investigation and a lot of speculation about is this investigation done now that “Scooter” Libby has been charged.
Patrick Fitzgerald indicated in one document that the investigation is open. And the judge reiterated that today. The judge said that because of the status of the investigation, because the status of the investigation is open and ongoing, the judge therefore would not give one particular document to defense that the judge said might reveal some of the prosecution strategy for this open investigation. Again, the idea that this investigation continues, that others might be charged other than “Scooter” Libby, I'd say that's probably one of the headlines out of today's hearing.
ABRAMS: Aitan, it sounds like we're talking about sort of these arcane discovery fights, what are they going to get, what not—what are they not going to get, but the bottom line is the rulings on these issues really determine whether this case is going to go to trial.
AITAN GOELMAN, FORMER FEDERAL PROSECUTOR: Well, yes. I think one of the concerns that the prosecutor here has is keeping the case on track for trial, and you know, worries about kind of all the secondary and tertiary litigation, if the PDBs are released, what position the White House going to take, and is that going to have to be litigated and if “Scooter” Libby's defense team issues subpoenas to all kinds of media organizations, are they going to claim reporter's privilege and I think Pat Fitzgerald you know is concerned that this case you know be tried sometime in the next couple of years and not get dragged out in unending discovery litigation for third parties.
ABRAMS: But the bottom line is this is kind of a nuclear defense, right? I mean it's saying, you want to come at us, come at us, but when you do, we're going to do everything we can to try and prevent this case from going to trial at all.
GOELMAN: It doesn't look like they want to make it easy.
ABRAMS: Curt Levey, let me read you from something in the motion that this is from Pat Fitzgerald. He said the defendant's request to compel the production of approximately 277 presidential daily briefs, the PDBs, for the sole purpose of showing he was preoccupied with other matters when he gave testimony to the grand jury is a transparent effort at graymail.
ABRAMS: Isn't that true?
CURT LEVEY, COMMITTEE FOR JUSTICE: No. I don't think so. And let me say that you said it's not arcane, because the trial, the result can hinge on it. It's also not arcane because there's very important constitutional rights involved here, and that's the right to confront the evidence against you, that's probably the most fundamental.
ABRAMS: How is the presidential daily brief relate to the evidence—he's going to be able to say I was so busy, you know, I just kept forgetting because I was thinking about all these other things.
LEVEY: Well, you make fun of that argument.
ABRAMS: I do. I do.
LEVEY: But I think that when you're working 16-hour days, I mean it's a typical—what the prosecutor is doing here is quite typical, which is if you can't someone on the merits that he violated the law by disclosing the name, then bring someone in for enough questioning and eventually you'll get something where they're mixed up and they don't remember and then you indict him on perjury.
ABRAMS: This was detailed, very detailed accounts, which turned out not to be close to the truth. I mean this is not just a little mistake here and a little mistake there. We're talking about, you know, fundamental differences in his testimony, from all the other people who were testifying.
LEVEY: But Dan we're not talking about the merits here. Ultimately a jury will decide whether the argument is credible.
ABRAMS: But you don't just get to throw out everything.
LEVEY: The judge wants to take away his ability to even make the argument. That's the problem.
ABRAMS: No, he can make the argument. They're just saying we're not going to sit here and let you delay this trial for years and years, and in fact, make sure this trial can't even occur because we can't release these secret documents for some possible theoretical maybe defense.
LEVEY: That's all speculative. Two years from now or one year from now, come back to me and say there's unreasonable delays, but to say up front that we're going to deny it because maybe it will turn out your strategy is to delay, that's just not there. Again, if the government can't prosecute without disclosing national security secrets, then they shouldn't be prosecuting. He has as much right as any defendant to confront the evidence before him. If he's guilty and is convicted, so be it, but it should be through a fair process.
ABRAMS: Yes but Aitan, this has been something that's been used in history as a defense in past cases, is what they try and do is they try and throw everything out and say we need this, we need this, we need this, in an effort to hope that the government will say oh, well we can't release that document, so we're going to have to drop the case.
GOELMAN: Yes and to make the whole effort burdensome. I mean you know part of the issue right now is the same issue that we faced in the McVeigh case. The McVeigh defense team wanted us to search you know every branch of every agency in the executive branch for you know particular documents and here their request isn't that broad, but they want the special counsel to go out and look for, you know, documents in other places besides their own offices. Maybe they're entitled to that and maybe they're not, but clearly part of the strategy is to make life harder for Pat Fitzgerald and his team.
ABRAMS: And that's something that you faced often as a prosecutor, in particular in the McVeigh case.
GOELMAN: You face a lot, yes.
LEVEY: Well excuse the defendant for not rolling over. A defendant is supposed to make it hard for the government to convict them.
GOELMAN: On the merits.
LEVEY: That's the whole point of our system.
GOELMAN: On the merits. I mean you're not supposed to make it hard look, I mean the problem with this is what Dan said. The defense that I was real busy, I had a lot of other things on my mind, that's fine if we're talking about case where he didn't remember a conversation, but if you, you know affirmatively make up a detailed conversation that doesn't happen, it's really tough to prove that it's material under rule 16.
LEVEY: Again, he may very well fail as a matter of proof, but I think you should have the case to make the argument. I'm not taking a position on whether it's a good argument or bad. I just don't think that because he served his country by dealing with national security matters that he should therefore less of a defense than other defendants would.
ABRAMS: He has to be able to show that that is relevant to the case.
LEVEY: I agree, but that's not the argument you guys are making an argument which sort of presumes from the start that this is all intended to delay. And I'm saying, give him a chance.
ABRAMS: No, I'm not. I'm saying not just intended to delay, I'm saying it's intended to get the charges dropped.
LEVEY: Well again, if he cannot be given the evidence necessary to defend himself, the charges should be dropped. In the end, nobody should go to jail in this country because their defense would somehow compromise national security.
ABRAMS: David Shuster, when do most people think this trial will actually take place?
SHUSTER: I'm guessing Dan, sometimes perhaps maybe February, March or April of 2007. I mean it seems pretty clear that they're already talking about pushing this back. And then the other thing, Dan, as you mentioned, the whole play with reporters, one of the things that struck us is so interesting today is that part of “Scooter” Libby's defense is going to turn on trying to somehow establish that Tim Russert was wrong.
When Tim Russert said he did not reveal information about Valerie Plame, he didn't know anything about Valerie Plame, that it was “Scooter” Libby who told him in court just a few minutes ago, you know and “Scooter” Libby's lawyer saying we want to pursue this theory that perhaps Tim Russert heard it from other reporters and that in fact, yes “Scooter” Libby was merely getting information from Tim Russert. And again it gets back to one of the difficulties that so many people have mentioned, and that is if it's “Scooter” Libby's word against Tim Russert's word in front of a jury, that's a tough case I think for “Scooter” Libby to make.
ABRAMS: Right. But I think that in the end it's not just going to be the word against the word. It's going to be the word against I believe, Russert's word plus all of the other evidence that has been brought to back that up.
SHUSTER: That's absolutely right and a whole series of conversations that “Scooter” Libby had with other government officials including Ari Fleischer are prepared to testify that they spoke with “Scooter” Libby about Valerie Wilson before “Scooter” Libby even had.
LEVEY: So you'll both get your wish and he'll be convicted.
ABRAMS: No. I think you can make the argument that this was a case that never should have been brought at all and that may be—that's an argument that I'm willing to listen to, but the idea at least right now that the defense is going to be I was so busy and that might have led to me forgetting things, I'm just not willing to accept that. I'm willing to listen, I'm hoping he comes up with a better defense, which he may, which I look forward to hearing, but until we hear something better than I forgot, and, you know, as a result, I was so busy, I'm going to keep criticizing.
LEVEY: If that's his only defense, then ultimately he will lose. I agree.
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