New surprises develop in CIA leak investigation

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In breaking news from the CIA leak investigation, an extraordinary move by Scooter Libby's lawyers to get the case thrown out, the defense is now asking the judge to dismiss this case in its entirety, contending that Patrick Fitzgerald was illegally appointed as a special prosecutor.

According to court filings this afternoon, Mr. Libby's lawyers say that because Mr. Fitzgerald was appointed by the Justice Department and not by the president with consent of the Senate, his role is actually unconstitutional.

They also are contending that Fitzgerald knew who disclosed Valerie Plame's name and covert status to the columnist Robert Novak within two months of beginning his investigation, and thus, say Libby's lawyers, Fitzgerald should have ended his inquiry there instead of pursuing other charges against their client.

They're also contending “Charges against Libby for any unlawful disclosure were off the table for lack of evidence long ago.”

MSNBC's David Shuster joined Keith Olbermann on “Countdown’ Thursday to discuss the recent turn of events 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.

KEITH OLBERMANN, HOST, ‘COUTNDOWN’:  The whole investigation is illegal.  Is there any weight to that?

DAVID SHUSTER, MSNBC CORRESPONDENT:  No.  I mean, defense lawyers will acknowledge that a motion to dismiss is a long shot, and it's probably even more of a long shot as Scooter Libby's relying on the idea that a judge might find that prosecutor Patrick Fitzgerald somehow not lawfully appointed.

I mean, this is settled law.  This goes back to Nixon versus the United States, U.S. vs. Nixon, when the Supreme Court noted that the attorney general has been given power by Congress to litigate on behalf of the United States, that the attorney general has the power to appoint subordinates, including special counsels, and that the executive branch is bound by special counsels.

The other thing that's worth pointing out is, in the filing today, Scooter Libby's lawyers told the judge that the judge may have to request that the Justice Department turn over a secret letter that the acting attorney general wrote to prosecutor Patrick Fitzgerald.

The problem is that the letter is actually not secret.  In fact, we found it right here off of the Justice Department Web site.  We printed it out.  It's right there for everybody to see.  And as a result, this probably proves that perhaps Scooter Libby's team is much more successful raising money for him off of the Internet than actually using the Internet to find information that's already in the public domain.

OLBERMANN:  The revelation that Fitzgerald knew who disclosed Valerie Plame's name to Robert Novak two months into his probe, obviously) if there is a salacious quality to it, that's the salacious headline.  But if that's the case, why do the rest of us still not know exactly who was the leaker?

SHUSTER:  Well, we know part of what Novak has testified to, and that the indictment against Scooter Libby said that Scooter Libby spoke with official A, and official A revealed that he had talked to Robert Novak about Valerie Plame/Valerie Wilson.  And we know from Karl Rove's lawyers that, in fact, Karl Rove is official A.  But Novak has said there was a second source.  In an early column, Novak describes as “no partisan gunslinger.”  And so the mystery has remained about the second source, in part because some of the grand jury transcripts, some of the information about Bob Novak's interviews with the FBI, that remains under seal, that at a certain point, we will find out who this second source presumably was.

OLBERMANN:  So Libby's side says Fitzgerald knows who the second source was.  Does anybody else say he knows that?  What does Fitzgerald say about that?

SHUSTER:  Well, Fitzgerald's team says it's largely irrelevant.  I mean, the point is that it doesn't really matter who was talking to Bob Novak.  This is not about who was talking to Bob Novak and when.  Certain information was learned early on in the investigation.  Fitzgerald is saying, Look, I didn't have any idea that Scooter Libby was involved in leaking this information until we got the journalists, other journalists, to testify.

And so that's why Patrick Fitzgerald is saying, This case must go forward.  And again, the case is not about who Robert Novak was talking to, it's about whether Scooter Libby testified truthfully to the grand jury and to the FBI when he said that he learned information from reporters, not that reporters learned information from him.

OLBERMANN:  You mention the journalists, the defense also contending now that Fitzgerald should never involved journalists in this case because, let me quote this, “There is a public interest in avoiding confrontations between the government and the press.”

Now, are they referring to this country, or some other country?

SHUSTER:  Yes, Keith, that's why tomorrow's hearing is going to be so much fun for all of us who get to cover this, because it'll literally take seconds for the judge to dismiss on these motions that have been filed.  And I suppose that Scooter Libby was really concerned about avoiding confrontations between reporters and the government maybe last week, when Vice President Cheney had shot somebody in the face and didn't want to tell the national media about it for a few days.  Maybe Scooter Libby could have stepped in and said, You know, let's avoid this little confrontation.

OLBERMANN: I mean, there's nobody in any place on the political spectrum who would say that we've been trying to avoid confrontations between the media and the government for these last umpteen years.