Libby's Lawyers File for More Discovery Documents

Late Wednesday, Scooter Libby's lawyers filed a third motion to compel more discovery from prosecutor Patrick Fitzgerald's team (.pdf file). They argue that the prosecution in the Plame Affair ought to be compelled to hand over documents from the CIA, State Department and government officials such as former White House press secretary Ari Fleischer and under Secretary of State Marc Grossman. The defense also stated that it plans to call Joe Wilson as a "hostile" witness along with Karl Rove, whom Fitzgerald has said he will not ask to appear.

Here's the gist of the 29 page filing:

1) The defense believes it is entitled to documents beyond those thus far provided to them that relate only to the OVP (Office of the Vice President).
2) they accuse the prosecution of holding approximately 200,000 pages of evidence in its possession, 14,000 of which they have provided to the defense.
3) they believe the status of Valerie Plame's covert status is in dispute and that some at the CIA may have asserted that she was because of their "bias" against the White House, which they state was the result of "bureaucratic infighting". Former CIA director George Tenet may also be called as a witness.

The government does not deny that it has documents in its possession that will help the defense tell the full story of how the government responded to Mr. Wilson's criticism. When the issue of Valerie Wilson's employment is viewed in its proper context, and the full story is revealed, it will be clear that Ms. Wilson's role was a peripheral issue. If the press stories surrounding the government's NIE disclosure illustrate anything, it is that this case is factually complex and that the government's notion that it involves only Mr. Libby and the OVP is a fairy tale.

4) they state that "any misstatements he [Libby] made are in fact innocent mistakes".
5) they assert that "Mr. Libby was not, of course, a source for the Novak story."
6) they are demanding documents related to Joe Wilson's trip to Africa, specifically, who sent him on that trip, so they can adequately examine Mr Wilson as a hostile witness.

In our moving brief, the defense explained that we intend to demonstrate at trial that Mr. Libby had no motive to lie by showing that he did not participate in a campaign to harm Mr. Wilson and did not cover up efforts by others to do so.

Further:

To the extent that the CIA's documents suggest that the DOJ hesitated to begin its investigation of the disclosure of Ms. Wilson's identity, and that hesitancy was related to the DOJ's uncertainty that any crime had been committed based on the information provided by the CIA, the defense should have the opportunity to use such information to prepare to cross-examine CIA witnesses at trial.

Prosecutor Fitzgerald had this to say about Plame's covert status at his October, 2005 press conference:

Valerie Wilson was a CIA officer. In July 2003, the fact that Valerie Wilson was a CIA officer was classified. Not only was it classified, but it was not widely known outside the intelligence community. Valerie Wilson's friends, neighbors, college classmates had no idea she had another life. The fact that she was a CIA officer was not well-known, for her protection or for the benefit of all us. It's important that a CIA officer's identity be protected, that it be protected not just for the officer, but for the nation's security. Valerie Wilson's cover was blown in July 2003. The first sign of that cover being blown was when Mr. Novak published a column on July 14th, 2003.
[...]
Let me say two things. Number one, I am not speaking to whether or not Valerie Wilson was covert. And anything I say is not intended to say anything beyond this: that she was a CIA officer from January 1st, 2002, forward. I will confirm that her association with the CIA was classified at that time through July 2003. And all I'll say is that, look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent. We have not charged that. And so I'm not making that assertion.

The charges against Libby are outlined here.

Since IANAL (I am not a lawyer), it's unclear at this point as to whether Libby's defense lawyers are entitled to the vast number of documents they currently seek to aid in his defense. It's quite possible that what they are asking for may be found to be too far-reaching and unnecessary.

WaPo adds this:

In his April 5 filing, Fitzgerald urged the court to dismiss Libby's demand for information about leaks to reporters by other government officials, on the grounds that what really counts in the case against Libby are the actions taken by him and "the discrete number of persons with and for whom he worked." Anything occurring outside those White House offices, Fitzgerald said, is "a irrelevant distraction from the issues of the case."

(hat tip to Talk Left for the heads up on the defense filing.)