For Scooter Libby, a judge's "middle ground" may be a defeat

If Libby's lawyers were hoping for a constitutional stalemate, Judge Reggie Walton seems to have denied them one.

Published February 28, 2006 7:02PM (EST)

If Scooter Libby's lawyers were trying to provoke some kind of stalemate between the need for national security secrecy and his right to a fair trial, it seems that U.S. District Judge Reggie Walton has some bad news for them. In an order issued Monday, Walton said Libby doesn't need access to a year's worth of presidential daily briefings just to prove that he was a busy guy with a lot on his mind.

Libby's lawyers argued that they needed access to the PDBs in order to prove to a jury that Libby was so consumed with pressing national security matters that it's no wonder he may have forgotten or "misremembered" details of his involvement in the outing of Valerie Plame. Special prosecutor Patrick Fitzgerald countered that the request amounted to "graymail" -- an effort to force the dismissal of criminal charges by demanding access to classified documents that the government can't or won't produce.

Walton hasn't ruled on Libby's request yet. But in his order yesterday, the judge made it clear that he isn't impressed. Walton said that Libby doesn't need the PDBs themselves in order to show that he was dealing with national security issues; a description of the "general subject matters" of the PDBs should suffice. Moreover, Walton said, Libby doesn't need information about every PDB from May 2003 to March 2004, as his lawyers have requested. Instead, Walton said, it may be enough for prosecutors to provide descriptions of PDBs from the weeks during 2003 in which Libby was leaking to reporters and from the few days around each of the times Libby met with investigators or testified before Fitzgerald's grand jury.

Walton has asked Fitzgerald to tell him whether the government could provide Libby's lawyers with such information and how much of a burden would be involved in doing so. As the Associated Press says, it's a "middle ground" approach -- which is to say, nothing like the constitutional conflict Libby's lawyers were probably hoping to provoke.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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