Patrick Fitzgerald filed a Motion In Limine yesterday to preclude Libby from presenting any evidence, making any comment or argument respecting the government's decision not to charge Richard Armitage, who did disclose Plame's name and position to at least two reporters (Robert Novak and Bob Woodward).

Those of us who've been watching this case know that from the moment Fitzgerald was named special prosecutor, he and Secretary of State Colin Powell,  the general counsel of the Department of State as well as key officials in the Department of Justice and the FBI all knew that the source of that information was Richard Armitage. And yet he proceeded with a broad based investigation and the prosecution of Libby.

Fitzgerald wants the Court to prevent the jury from knowing that.

In his pleading, Fitzgerald argues that this information is not relevant. I'll not try to do the work of Libby's lawyers who need no assistance, but it does seem relevant to me, for if Armitage, who deliberately revealed this information to at least two reporters, was not charged with unlawfully revealing classified information, there was likely no law violated in the disclosure of this information. And if there was none—and I am sure of that—what motive did Libby have to lie? If there was no motive to lie, surely the slight testimonial variances between Libby's recollections of three short inconsequential conversations and those of the reporters involved seems certain to have been the normal, expected variances in recollections of such trivia.

Fitzgerald then goes further, and says that even if the evidence is relevant , it should be kept from the jury because the 'jury might impute to the government certain beliefs and opinions based on the decision not to charge certain crimes, and improperly draw inferences regarding the government's view of the conduct'—i.e., that the defendant's disclosure was proper.He makes clear that he fears if these facts were known by the jury it  'would have an undue tendency to suggest jury nullification.'

I translate these two arguments as follows. If the jury knew what we know they'd conclude:

(1) Armitage was far more culpable than Libby and if he wasn't charged , why is it Libby who's in the dock?

(2) Something is fishy about this prosecution and we aren't going to be a party to it.

In my reading of the pleading, I do not see a  cited case directly on point. But since I know these facts and think there is something very wrong with the prosecution of Libby and that the case should never have been brought, I can understand why Fitzgerald is so desperate to keep the jury in the dark. Perhaps if he hadn't implied so much in his press conference announcing the indictment—including the false charge that Libby was the first to disclose this information—he wouldn't look so foolish now.

But foolish and desperate he is.

And we're just at the threshold.

Clarice Feldman  10 30 06