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February 24, 2006
Stacking The Deck

I haven't posted much about the pending prosecution of I. Lewis "Scooter" Libby for alleged perjury before the grand jury investigating the leak of Valerie Plame's status as a CIA employee. The case moved from the political to the legal with the unsealing of the indictment, and most of the revelations coming from the case has consisted of the normal legal machinations that amount to nothing noteworthy.

However, the Washington Post notes one development that appears rather strange. The judge in charge of the case has barred the defense from learning the identity of another goverment official who reportedly discussed Plame's status with the press:

Former White House aide I. Lewis "Scooter" Libby, charged with perjury in the CIA leak case, cannot be told the identity of another government official who is said to have divulged a CIA operative's identity to reporters, a federal judge ruled Friday. ...

During a hearing Friday afternoon, Walton said Special Counsel Patrick Fitzgerald can keep secret the other government official's identity because that person has not been charged and has a right to privacy.

Since when does the prosecution get to withhold evidence in a criminal prosecution because of a right to privacy? Had the judge ruled that the information was not relevant to the charge, the ban would be understandable. However, since the entire prosecution appears to have its basis in the supposed evasion of Libby under oath on the nature of the information divulged and the timing of its publication, having more than one official discussing it with reporters sounds at least arguably relevant. Fitzgerald argued that the quoted remarks meant something entirely different, but that should be an argument for Fitzgerald to make to a jury, not a reason to deny Libby's lawyers to depose the witness for themselves.

If Libby committed perjury, then he should get convicted of the crime and suffer the consequences. However, Libby has the right to mount a defense against the prosecution's case, and the embarrassment that a subpoena might cause this material witness does not outweight Libby's right to that defense.

UPDATE: The Washington Post has removed the web-only article by Toni Locy and replaced it with an article by Carol Leonig at the same link, which also appears in the print version. As Tom Maguire notes in the comments, the new article now reports that the judge found the witness "not relevant". Check out Tom's blog for the latest in the Libby/Plame case.

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Posted by Ed Morrissey at February 24, 2006 7:56 PM

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