Note: Sorry folks, I was getting a lot of interruptions when trying to write this. I have been cleaning up all the mistakes.

After some review of the latest filing by the Libby defense team I think it is fair to say Libby’s lawyers are much better than Fitzgerald’s team (who argue like pre-law students), and they have something on Marc Grossman that calls into question his testimony regarding Valerie Plame and discussions with Libby. Understand that this is not a time in a trial to play lose with judges on wild goose hunts. This is not a time to establish your team as inept or over reaching. Libby’s lawyers are going to pick their battles, demonstrating all the way they are serious and credible. The judge will weigh all future motions on their past performance. So I see this as a time to play to strengths and demonstrate to the judge he can and should take your arguments seriously.

So when I saw some of the comments Libby’s team is going to show to the judge, through these filings, I realized what a piss-poor job Fitzgerald did in all of this. Start with this statement, where the Libby lawyers graciously reduce their request for documents to a subset now in the possession of Fitzgerald (top of page 11):

Nevertheless, to reduce any burden on the government, with respect to documents responsive to requests A(1) (which asks for documents concerning Mr. Wilson’s trip and subsequent discussion of it), B(1) and B(2) (which relate to the NIE), and B(3) (which asks for documents relating to the July 11, 2003 statement by Director of Central Intelligence George Tenet), the defense will agree to limit these requests to documents that are currently in the actual possession of the OSC or which the OSC knows to exist.

They smartly reserve the right to expand their request at a later time based on what they find or do not find, but they have offered an olive branch to the floundering prosecutor. That caught my eye as a gutsy call since the defense could lose some key information. So I wondered why would they make an unforced error like this? Hints began to appear farther in.

Starting on the bottom of page 14 and going onto the top of 15 the Libby lawyers bust up Fitzgerald’s truly ridiculous arguments concerning the relevance of documents:

Moreover, what the government describes as attempts by the defense to put the conduct and state of mind of others on trial are in reality efforts by the defense to investigate whether the allegations in the indictment are accurate. In a case where the jury will be asked to decide whose memory is accurate and whose statements are not trustworthy, it is perfectly appropriate to use Rule 16 to gather evidence that will tend to suggest that the testimony of certain government witnesses about their conversations with Mr. Libby is not believable.

Emphasis mine. This is a pretty strong statement given all the other sound arguments contained in this section. There is no reason, at this stage, to go out on this limb. Am I reading too much into this? Maybe. But this is all pre-trial, so it is to impress upon the judge some angles that will be very important during the trial. As I said before, this is not a time for a mistep.

I know a judge or two, and my guess is they are not impressed with wild accusations like this appears to be on its face. On the flip side, if they point the judge to some information they know is out there which supports the claim, the judge will take their challenges seriously and allow more leaway in other motions. So we have a gracious, if risky act of compromise with the bold claim some government witnesses may have some believability issues.

Then we get to the point of Marc Grossman specifically. Fitzgerald has naively based his case on the assumption only Scooter Libby could have confused or inaccurate testimony, and that all other government employees are unimpeachable. Like I said, Fitzgerald is not a very impressive legal thinker if he thinks that will fly. Here are sections of the discussion on Mr. Grossman running from page 15 to 16:

…the government plans to call Under Secretary Grossman to testify that he discussed Ms. Wilson’s CIA employment with Mr. Libby – a conversation that Mr. Libby testified in the grand jury he did not recall and which may not have occurred as alleged in the indictment. For example, the indictment asserts that this conversation occurred “[o]n or about June 11 or 12, 2003.” (Indictment, Count One, at 6.) Accordingly, Mr. Grossman’s activities in that time period, including any other communications about Ms. Wilson that he may have had, are highly relevant. If, for example, documents indicate that Mr. Grossman confused details of the conversation alleged in the indictment with a conversation with another government official, the defense will use such documents to suggest that his recollection is faulty. In a case where it is already manifest that the memories of many witnesses conflict regarding many different conversations, it is not fair to foreclose the possibility that witnesses other than Mr. Libby may be confused or mistaken about relevant events.

Again, emphasis mine. I get the feeling that Libby’s team have someone who recalls a discussion with Grossman during this period on this matter. I also would bet Grossman’s testimony is not as strong as Fitzgerald lets on. Fitzgerald has exaggerated lots many aspects of this case. He reads more into words than is there, sometimes in opposition to other statements (like Miller’s repeated claims that Libby did not name Wilson’s wife or employment). It get’s better on the top of page 16

Regardless of the government’s limited offer, the defense has a constitutional right to attempt to demonstrate, if it so chooses, that the substance of Mr. Grossman’s testimony is incorrect, and that all of his testimony should be rejected, including his allegation that he spoke to Mr. Libby about Ms. Wilson on a particular day. The best way to do that would be to show that some part or all of Mr. Grossman’s statements were substantively untrue.

Grossman may not be the bad guy here at all. Fitzgerald knew his boss Armitage was mixed up in this and could have pressured Grossman to make a stronger than intended statement or pushing a vague recollection ‘into focus’ so as to help his boss avoid trouble. It happens. Good people make claims in response to the interrogation, not always to produce the facts as they know them. And few people realize it is OK and proper to say they do not know for sure about details. But something is up with team Libby and Grossman.

This next part truly illustrates some poor arguments on Fitzgerald’s side, and how easy they are to knock down:

The government responds to the defense contention that bias on the part of Mr. Grossman deserves to be explored by stating that “loyalty to Mr. Armitage or to the State Department” would not cause Mr. Grossman to “invent conversations . . . and testify to them under oath.” (Id. at 14.) Whether the government’s statement on this point is true is for the jury to decide, and there is certainly nothing unusual about a defendant arguing that the personal and professional allegiances of a witness may result in false or distorted testimony.

Clearly Fitzgerald has overstepped his bounds. I am beginning to wonder if all this has gone to his head! He is not the arbiter of truth and justice – our legal system is. That includes the judge and the court proceedings. It will be interesting to see how the judge responds to this argument. If I were in the judge’s shoes I would be in a mood to put the prosecutor back in his place and see what the defense has here. Because this is all about building credibility, one move at a time.