If Scooter Libby v. Patrick Fitzgerald were a boxing match, Libby’s corner would ask the referee to stop it. Everytime they force Fitz to respond to one of their pleas, he just eviscerates them and sneaks damaging information in the public arena. Go below the fold to see Fitz at work. It’s amazing, and I wish all wingnuts could be forced to listen to Fitz’s version of events. He’s just dripping with contempt for Libby. It’s clear he thinks he is a scumbag. I especially love his citation of the trial of Iran-Contra operator Richard Secord. That was a good inside joke. Check it out.

In an attempt to recast the relevant issues at trial, defendant claims he is entitled to correct
the “distorted picture of the relevant events” presented in the indictment, including the
“exaggerati[on of] the importance government officials, including [defendant], attributed to Ms.
Wilson’s employment status prior to July 14, 2003,” and to present “a more complete and accurate
narrative” of the alleged events, and to establish that defendant “and other government officials”
viewed Ms. Wilson’s identity as at most a “peripheral issue.” Memo. at 27. Defendant argues that information regarding bureaucratic infighting over responsibility for the “sixteen words” will help
the jury appreciate how defendant “may have forgotten or misremembered the snippets of
conversation the government alleges were so memorable.” Memo. at 3-4.

Though he might wish otherwise, this trial is not about the conduct or state of mind of
persons other than defendant. Indeed, the state of mind of other individuals is of negligible value
in determining whether defendant lied to the FBI and grand jury. In reality, it does not matter
whether Ms. Wilson’s role was thought to be important or peripheral by anyone other than defendant and the discrete number of persons with and for whom he worked. Accordingly, it is clear that documents from outside the OVP are not sought to establish “context” but rather to provide an
irrelevant distraction from the issues of the case.

Moreover, evidence from the CIA, State Department, and NSC about whether persons
working there thought the issue of Ms. Wilson’s employment was “peripheral” will not place in
context the state of mind of defendant and others working in the Office of Vice President at the
relevant time, nor explain whether defendant was likely to have forgotten conversations about the
topic in which he participated. In June 2003, when discussing Ambassador Wilson’s trip to Niger,
the Vice President advised defendant that Ambassador Wilson’s wife worked at the CIA in the
Counterproliferation Division. Indict., Count One, ¶ 9.

The evidence will show that the July 6,
2003, Op Ed by Mr. Wilson was viewed in the Office of Vice President as a direct attack on the
credibility of the Vice President (and the President) on a matter of signal importance: the rationale
for the war in Iraq. Defendant undertook vigorous efforts to rebut this attack during the week
following July 7, 2003.

At some point after the publication of the July 6, 2003 Op Ed by Mr. Wilson, Vice President
Cheney, defendant’s immediate superior, expressed concerns to defendant regarding whether Mr.
Wilson’s trip was legitimate or whether it was in effect a junket set up by Mr. Wilson’s wife. And,
in considering “context,” there was press reporting that the Vice President had dispatched Mr.
Wilson on the trip (which in fact was not accurate). Disclosing the belief that Mr. Wilson’s wife
sent him on the Niger trip was one way for defendant to contradict the assertion that the Vice
President had done so, while at the same time undercutting Mr. Wilson’s credibility if Mr. Wilson
were perceived to have received the assignment on account of nepotism. The context for defendant’s
disclosures in the course of defending the Office of the Vice President will not be fleshed out in any
files of CIA or State Department or NSC employees that might reflect what they thought. Put
slightly differently, the thoughts and impressions of CIA, State Department, and NSC employees,
absent any evidence that these thoughts and impressions were conveyed to defendant, simply cannot
shed light on defendant’s state of mind at the time of his alleged criminal conduct. See United States
v. Secord, 726 F.Supp. 845, 848-49 (D.D.C. 1989) (“The subjective state of mind which Defendant
Secord wishes to prove could have arisen solely from conversations in which he participated,
correspondence which he himself read, meetings which he himself attended. . . . The point is simply
that Defendant’s state of mind can come only from what he hears or sees. Defendant is entitled to
discover materials which evidence his personal knowledge about or belief in the legality of the

Nor would such documents of the CIA, NSC and the State Department place in context the
importance of the conversations in which defendant participated. Defendant’s participation in a
critical conversation with Judith Miller on July 8 (discussed further below) occurred only after the
Vice President advised defendant that the President specifically had authorized defendant to disclose
certain information in the NIE. Defendant testified that the circumstances of his conversation with
reporter Miller – getting approval from the President through the Vice President to discuss material
that would be classified but for that approval – were unique in his recollection. Defendant further
testified that on July 12, 2003, he was specifically directed by the Vice President to speak to the
press in place of Cathie Martin (then the communications person for the Vice President) regarding
the NIE and Wilson. Defendant was instructed to provide what was for him an extremely rare “on
the record” statement, and to provide “background” and “deep background” statements, and to
provide information contained in a document defendant understood to be the cable authored by Mr. Wilson.

During the conversations that followed on July 12, defendant discussed Ms. Wilson’s
employment with both Matthew Cooper (for the first time) and Judith Miller (for the third time).
Even if someone else in some other agency thought that the controversy about Mr. Wilson and/or
his wife was a trifle, that person’s state of mind would be irrelevant to the importance and focus
defendant placed on the matter and the importance he attached to the surrounding conversations he
was directed to engage in by the Vice President.
Likewise, documents from other agencies that defendant never saw will not provide context
for defendant’s grand jury testimony regarding these events. Defendant testified that he did not
discuss the CIA employment of Ambassador Wilson’s wife with reporter Judith Miller on July 8,
2003 and that he could not have done so because he had forgotten by that time that he had learned
about Ms. Wilson’s CIA employment a month earlier from the Vice President. Nor could such
documents explain defendant’s testimony disclaiming having discussed Ms. Wilson’s employment with various other government officials prior to July 10, 2003, or his testimony that he was “taken aback” when journalist Tim Russert asked about Ms. Wilson’s employment with the CIA on July 12, 2003. Accordingly, none of the documents requested by defendant could possibly support the defense that the specific perjury specifications are mere “snippets” of conversation he “may have misremembered.”

And questions? Read the whole thing here (.pdf).

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