I've argued that the Special Counsel has criminalized a political dispute and increasingly seems to be using his position, not to advance his case, but to smear the defendant and the Administration.

Either that, or he seems to have a very spotty knowledge of the facts in the case he is pursuing.
 
Last night in response to Fitzgerald's representations about the news articles he intended to place in evidence, Libby filed court papers that underscored this shocking lack of command of the facts of the case. Byron York reports.

In this filing, Libby says:

The prosecution wants to introduce a copy of Mr. Wilson's July 6 op—ed that includes notations written by the Vice President, even though it is aware that Mr. Libby testified before the grand jury that he did not see this document until it was shown to him by the FBI in November 2003. On his first day of grand jury testimony, when asked if he recalled discussing this particular document with the Vice President, Mr. Libby testified: "I don't recall that . . . I subsequently learned that he had such an article from the FBI agents who talked to me." During Mr. Libby's second appearance before the grand jury, the Special Counsel asked him:  "[W]hy don't I show you the copy of the July 6th column with some handwriting on it. And I believe we showed this document to you the last time, or at least discussed it, and you indicated that you had not seen this copy of the article with the handwriting until the FBI showed it to you?" Mr. Libby responded: "That's my recollection, sir."

Yet, despite such clear testimony, the government asserts that the Vice President's notations are relevant to the charges against Mr. Libby and that this document is admissible. The government argues that those notations

support the proposition that publication of the Wilson Op Ed acutely focused the attention of the Vice President and the defendant — his chief of staff — on Mr. Wilson, on the assertions made in his article, and on responding to those assertions. The annotated version of the article reflects the contemporaneous reaction of the Vice President to Mr. Wilson's Op Ed article, and thus is relevant to establishing some of the facts that were viewed as important by the defendant's immediate superior, including whether Mr. Wilson's wife had "sent him on a junket."

The government evidently wants to argue to the jury that "facts that were viewed as important" by the Vice President would have been important to Mr. Libby too, and that the Vice President's notations can be used to show what Mr. Libby focused on during July 2003. These arguments are tantamount to an acknowledgement that the state of mind of witnesses other than Mr. Libby will be important at trial — precisely what Mr. Libby has been arguing in the pending motion. 

York also notes about the filing:

"One, it sheds light on why Fitzgerald worded his argument as he did.  Saying that the Cheney annotations "support the proposition that publication of the Wilson Op—Ed acutely focused the attention of the vice president and the defendant — his chief of staff — on Mr. Wilson" would lead any reasonable reader to think that Fitzgerald was saying Libby had seen the document, when in fact Fitzgerald did not have evidence to support that contention, and had Libby's testimony saying he, Libby, had not seen it. "

This is the second time Fitzgerald has  misrepresented material respecting the Vice President. Earlier he made false representations about the Vice President's role in the declassification of the National Intelligence Estimate, created a media storm and waited a full week to correct it. Quoting the Washington Post:

Last week, Special Counsel Patrick J. Fitzgerald wrote that, in conversation with former New York Times reporter Judith Miller, Libby described the uranium story as a "key judgment" of the CIA's 2002 National Intelligence Estimate on Iraq, a term of art indicating there was consensus within the intelligence community on that issue. In fact, the alleged effort to buy uranium was not among the estimate's key judgments and was listed further back in the 96—page, classified document.

In a letter to U.S. District Judge Reggie B. Walton, Fitzgerald wrote yesterday that he wanted to "correct" the sentence that dealt with the issue in a filing he submitted last Wednesday. That sentence said Libby "was to tell Miller, among other things, that a key judgment of the NIE held that Iraq was 'vigorously trying to procure' uranium."
Instead, the sentence should have conveyed that Libby was to tell Miller some of the key judgments of the NIE "and that the NIE stated that Iraq was 'vigorously trying to procure' uranium."

Clarice Feldman   5 20 06