Libby judge: It's a small case after all

In a discovery ruling, Judge Reggie Walton rejects Libby's lawyers' efforts to contextualize the case against him.

Published June 2, 2006 5:52PM (EDT)

Court orders on discovery motions aren't always scintillating reading, but they can provide important clues as to how a judge views a case. Exhibit No. 1: The order U.S. District Judge Reggie Walton issued this afternoon in the Scooter Libby prosecution.

As Byron York has explained in the National Review, Patrick Fitzgerald would like Libby's trial to focus on the "small case": Did Libby lie to federal investigators and the grand jury about leaking Valerie Plame's identity to reporters? Libby's lawyers, on the other hand, want to try the "big case," arguing that Libby -- and just about everyone else in the Bush White House -- was so caught up in legitimately defending the president against unwarranted attacks over Iraq that it's no surprise that Libby might have forgotten some of the details when talking with investigators or testifying before the grand jury.

Earlier this year, Libby's lawyers filed a motion that fits right in with their "big case" theory. They asked Walton to order Fitzgerald to turn over documents on anything and everything even tangentially related to the case against Libby: Documents related to the genesis of Wilson's trip to Niger; documents about the infamous "16 words" in George W. Bush's State of the Union speech; documents that would show whether anyone else outside the CIA knew of Plame's employment before it was leaked; documents about a conversation Colin Powell once had in the White House Situation Room; documents related to the 2002 National Intelligence Estimate on Iraq; and documents reflecting any White House scheme to discredit or punish Plame or her husband, Joseph Wilson.

Fitzgerald's response: Not relevant. The case is about whether Libby lied about his leaks, and all the other stuff -- the truth of Wilson's statements, the run-up to war, the NIE and Colin Powell and everything else -- doesn't have any bearing on that.

In the order he issued this afternoon, Judge Walton came down pretty hard in favor of Fitzgerald's "small case" view. Denying the lion's share of Libby's requests, Walton said: "Although the special counsel's criminal investigation initially focused on whether government officials illegally disclosed Ms. Wilson's employment with the CIA, the defendant has not been charged with any such violation. Rather, the only question the jury will be asked to resolve in this matter will be whether the defendant intentionally lied when he testified before the grand jury and spoke with FBI agents about statements he purportedly made to the three news reporters concerning Ms. Wilson's employment. The prosecution of this action, therefore, involves a discrete cast of characters and events, and this court will not permit it to become a forum for debating the accuracy of Ambassador Wilson's statements, the propriety of the Iraq war or related matters leading up to the war, as those events are not the basis for the charged offenses."

The one bright spot for the Libby team: While Walton won't order Fitzgerald to give Libby's lawyers documents showing the state of mind or knowledge of others, he said he will order Fitzgerald to produce any documents that show that Libby himself was involved in a legitimate effort to "rebut the accuracy" of Wilson's Niger findings. If such documents exist, Walton said, they could help Libby defeat the prosecution's claim that he intended to lie to investigators, perjure himself or obstruct justice.

By Tim Grieve

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

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