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In my May 2 essay, I noted that Team Libby had filed two documents with the court on May 1. The first was a Response to Patrick Fitzgerald's Motion to have Judge Reggie Walton reconsider his April 5 Opinion concerning Ex Parte submissions under CIPA. I used the term "histrionics' to describe the defense attorneys' choice of words ("meaningless dictum," "equally bizarre," etc). I stated that I suspect that some of the efforts being made by Team Libby are in anticipation of grounds for appeals after he is convicted.
Yesterday, Judge Reggie Walton issued a Memorandum Opinion that favored Mr. Fitzgerald, and may have closed the door on some of the issues that Team Libby was hoping for. Christy Hardin Smith wrote a wonderful, concise description of the ruling on Firedoglake that I strongly recommend to people interested in the case. I have a few thoughts might also be some value in understanding the significance of Judge Walton's ruling.
There has been a strong disagreement between the prosecutor and the defense on the need to keep classified information secret. That is perhaps an understatement, considering that Mr. Libby's legal troubles are rooted in his spreading classified information, including a National Intelligence Estimate and the identity of a CI analyst with NOC status. More, Mr. Libby's attorneys have admitted, in response to Judge Walton's April 13 Order, to having potentially violated the court order to not attempt to try the case in the media. In their April 21 Response, they admitted to having discussed the case with a reporter, and to releasing a document that was not yet filed on the public docket.
Mr. Fitzgerald prefers to have the court decide if some of the debate on the issues of what documents should remain secret should be done "Ex Parte." That is when a proceeding comes from one side; in this case, it means that only Mr. Fitzgerald presents his side to Judge Walton.
Team Libby prefers to have each hearing on these issues to be "adversarial," meaning that it is more fully litigated with both the prosecutor and defense attorneys making their arguments to the judge.
In his April 5 ruling, Judge Walton had indicated that the future issues on classified information would be determined by adversarial hearings. Mr. Fitzgerald then made a motion that by its nature had to show: {1} a change in law; {2} new evidence; or {3} a need to correct a clear error that could produce an injustice. He also included a motion for clarification. Judge Walton, upon further examination of the CIPA law, found that Mr. Fitzgerald was correct in suggesting there was an error that could have been significant.
The CIPA law is the Classified Information Procedures Act. Section 4 allows the court to authorize Mr. Fitzgerald to "delete specified items of specified information from documents to be made available to the defendant through discovery ..." Mr. Fitzgerald can, in those instances, either "substitute a summary of the information," or "substitute a statement admitting relevant facts that the classified information would tend to prove."
The defense attorneys prefer the adversarial hearings in part because they allow for more information to be entered into the court proceedings that may be grounds for a future appeal. Keep in mind that one of the four top guns in Scooter's "dream team" is focused primarily on appellate issues. In general, the basis of an appeal has to be found in errors in the formal court proceedings. These are found in two areas: {1} the wrongful admission of evidence; or {2} the improper refusal to allow evidence to be admitted.
Judge Walton noted, "The defendants will no doubt continue to object to this procedure. The Court notes, however, that this process actually places the defendant in a stronger position then he otherwise would be. If this Court did not amend its April 5, 2006 Opinion, the government, not the Court, would be tasked with independently determining the materiality of certain classified information. Here, the Court, as it must under CIPA, will be the final arbiter of such determinations."
I think that this ruling should further help ease the concerns of liberals and progressives that Judge Walton would be prone to helping Scooter Libby by interpreting the law in a way that handcuffed Mr. Fitzgerald. Instead, we see that the noose is tightening on the Team Libby defense strategy. Mr. Fitzgerald's case is beginning to look like, if you will excuse the expression, a "slam dunk."
Many liberals and progressives continue to have serious questions about Judge Walton's actions in the Sibel Edmonds' case. As a card-carrying member of the ACLU, I am also concerned about the amount of government secrecy. However, I recognize that there are times when the federal courts will make rulings that are not in favor of progressive movements in America.
I strongly recommend that people interested in previous cases that show the legal and political realities of the American constitutional system in cases where some similar issues are involved, read two books by Alan Westin of Columbia College. The first is "The Anatomy of a Constitutional Law Case," (Macmillan, 1958), which examines the fascinating "Steel Seizure" case of 1952. The second, which I think is more interesting, is "The Trial of Martin Luther King," by Westin and Barry Mahoney (Thomas Crowell Co., 1974). It is a study of the landmark Birmingham case, in which the US Supreme Court ruled against King. It is, in my opinion, worth reading in consideration of the Sibel Edmonds case.
The Libby case, and the upcoming Rove case, will perhaps serve for future books as important in understanding how the federal courts provide a setting for the struggles for progressive social change.
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