CASE #: 1:06-mc-00123-RBW: NBC NEWS & AFFILIATES

CASE #: 1:06-mc-00124-RBW: MATTHEW COOPER

CASE #: 1:06-mc-00125-RBW: JUDITH A. MILLER

CASE #: 1:06-mc-00126-RBW: ANDREA MITCHELL

CASE #: 1:06-mc-00127-RBW: TIM RUSSERT

CASE #: 1:06-mc-00128-RBW: TIME, INCORPORATED

CASE #: 1:06-mc-00129-RBW: NEW YORK TIMES COMPANY

& Regarding The Judge’s Ruling: Memorandum Opinion on April 5, 2006 (PDF via Tom Maguire)

“Jeralyn hits on a point that Team Libby wins on: they are authorized to submit a brief to the Judge outlining their thoery of the case for the defense, which essentially gives the Judge a road map to what Libby’s strategy will be at trial. This will allow the Judge to keep this in mind when reviewing ex parte submissions from Fitz as to whether or not an order of disclosure would be material to Libby’s defense and whether it would be appropriate.

I think this is both a blessing and a curse, in a lot of respects. I’m assuming that the Judge will allow for an amended filing, should additional evidence or theories arise as Team Libby goes through the discovery given to them by the government. But in filing a brief like this, as a defendant you necessarily limit yourself to what your lawyers are looking at for your particular case. When you leave something like this to a judge’s discretion, especially one who is well-versed in trial proceedings and has been on the bench for a while, sometimes their understanding can be broader than an attorney who has tunnel vision with their own set of facts. Libby’s attorneys are highly qualified and very experienced, so it is unlikely they will fall into the tunnel vision mindset, but even the best of attorneys can get a bit myopic when they are living and breathing a case day in and day out with motion production and can miss something.

It will depend on how heavily the Judge relies solely on Team Libby’s representations and how carefully those representations are crafted as to how this can favor or limit Libby down the road. (And this is not something new — this sort of thing has occurred before in high level security clearance cases. See US v. Poindexter, 732 F. Supp. 142 (DDC 1990) as one example — sorry couldn’t find a link on this case, if anyone can locate a good one, I’ll link it up.)

That said, the rest of the opinion is pretty much a win for Fitz’s team — which, given the CIPA regs and the allowance for ex parte submissions even in Rule 16, wasn’t exactly a shocker. This was always going to be a tough argument for Libby to come anywhere close to winning, let alone getting anywhere with it at all. And basically, he doesn’t.” cont…

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