AP reported last night that the Judge in the Scooter Libby case has ordered that the special prosecutor has been too restrictive in his reading of which material he must and will provide the defense:

U.S. District Judge Reggie B. Walton said Libby has a right to use some classified material at trial in January. Walton has not said publicly what must be allowed, and both sides are arguing behind closed doors over how the information will be blacked out for jurors.

In a ruling Monday, Walton said Fitzgerald's proposed redactions were too restrictive. The memory argument is a key part of Libby's defense, Walton ruled, and he must be allowed to use classified information to make that case.

"He is alleging both that the volume of his work would have impacted his memory and that some of the information presented to him as the vice president's national security adviser was so potentially catastrophic to the well—being of the country that the focus he had to devote to this information also impacted his memory," Walton said.

Walton said he isn't going to give Libby a free pass to allow all classified information into court. He said the two sides must balance Libby's need to defend himself with the government's need to protect sensitive material — a compromise that he believed could be achieved

Additionally, as we noted earlier, the Special Prosecutor is arguing that Libby should be denied the right to inform the jury about Armitage's role in divulging Plame's identity. In papers filed today, Libby makes clear that he should be allowed to inform the jury, badly misinformed by the Prosecutor's public statements and acts (and the media's as well) that he never leaked, there was no White House plot to reveal her identity, and, in fact, there was no crime to be covered up and, therefore, he had no motive to lie. From the Washington Post:

"It is doubtful that anyone committed an 'underlying crime' here," Libby's lawyers wrote. "The government's investigation began as an effort to discover which government officials had 'leaked' Ms. Wilson's affiliation with the CIA to Mr. Novak. After years of overheated media speculation that Ms. Wilson's identity had been publicly revealed as part of a White House plot to wreak revenge on her husband, Mr. Armitage (who was no White House ally) finally confirmed in August 2006 that he was Mr. Novak's primary source."

Libby's attorneys said Fitzgerald has perpetuated the notion that Libby was the source and said the former aide should be allowed to tell jurors that he was not _ and thus had no reason to lie to the FBI or grand jury.

"Members of the jury will have heard for years that Mr. Libby leaked classified information about Valerie Wilson's affiliation with the CIA, due to inaccurate reports in the press," defense attorneys wrote. "Indeed, the government has contributed to the likely misimpressions that potential jurors will have about this case."

After Fitzgerald's unfortunate and prejudicial press conference and the overblown and false reporting about the case, it is hard to see how Libby can be denied the right to make this defense. And if he is allowed this defense, it is clear he had no  motive to lie .One wonders how a reasonable jury could conclude that any testimonial variances between him and other witnesses were more than inadvertent.

Clarice Feldman   11 14 06

Update:

I have now had an opportunity to read this latest pleading.
 
Aside from the Armitage quote, I think this is the second most important thing in these pleadings:

The government concedes that evidence concerning its charging decisions is relevant in certain circumstances. Specifically, the government admits that 'information relating to its discussions with prospective witnesses, for example, an agreement to provide immunity, is relevant on the issue of the witnesses' motivationI~sI.' Mot. at 6 n.1. The government is absolutely correct. But the relevance of that information is not limited to situations involving an immunity agreement. In situations where a witness faced potential criminal liability, the government's decision not to charge that witness may be just as relevant as the government's discussions with that witness. In the same manner, the fact that a witness has not been charged, but has reason to fear he or she could be charged, is also relevant. The defense should be permitted to cross—examine witnesses at trial about whether, for example, they testified in the grand jury or gave other information to the government in a manner calculated to curry favor with prosecutors and avoid prosecution. In such circumstances, it is undoubtedly pertinent that the witness in question was never charged by the government. Such information goes to the potential bias of a witness, which is always relevant. See United States v. Leonard, 494 F.2d 955, 963 (D.C. Cir. 1974) ('The permissible scope of exploration on cross—examination is not curtailed by the absence of explicit government promises of leniency, for the defense may attempt to show government conduct which might have led a witness to believe that his prospects for lenient treatment by the government depended on the degree of his cooperation.') (citations and quotations omitted).

Further, even though the defense has not yet received any Jencks material, we are aware that certain potential witnesses have admitted they gave inaccurate information to the grand jury. We are also aware, based on information provided by the government in discovery, that potential witnesses gave testimony that directly conflicts with the testimony of other potential witnesses. The fact that these witnesses have not been charged, but have reason to fear charges, is undoubtedly admissible evidence because it bears on their motives to please the prosecution, which in turn reflects possible bias.

At this point in the case, before the government has provided Jencks material to the defense, and before the government's witnesses have testified, it is premature to conclude that any reference at trial to the government's decisions not to charge other individuals would be irrelevant or unduly prejudicial.  (Emphasis Supplied.)

There are a lot of people whose shoes I would not want to be in if this case ever goes to trial.

Clarice Feldman   11 14 06