Fitzgerald’s case is taking on water faster than I thought. In a 40 page decision (H/T Tom Maguire at JOM), Judge Walton gave Libby all sorts of impeachable information against Fitzgerald’s witnesses. He did let Miller’s schedule and phone records be excluded, but as you read through it seems there was other evidence that could impeach Miller, making her records less important. First off, this information regarding the NY Times documents they tried to hold back (page 15):

In fact, The New York Times has produced these documents—draft articles—to the Court for its in camera review, and it is clear 10 from the Court’s examination that the documents responsive to this specific request are not only relevant, but will clearly be admissible as impeachment evidence.

The judge is clearly saying NY Times had documents that favored Libby’s case, and was trying to withhold them! Why? Are they afraid just migh run a fair course? Well, here are the subjects of those documents (where they were responsive to the subpoena):

3. All documents prepared at any time by Judith Miller, or by any other employee or agent of The New York Times based upon information received from Judith Miller, that refer or purport to describe any part of any conversation between Judith Miller and I. Lewis Libby on June 23, July 8, or July 12, 2003, or any telephone calls between Judith Miller and I. Lewis Libby at any time during June or July 2003. This request includes but is not limited to drafts of an article entitled “A Personal Account: My Four Hours Testifying in the Federal Grand Jury Room” published October 16, 2005.

This is why I think the calendar and other vague items that could create potential dots to connect became irrelvent. But there are more documents the judge reviewed which he also ordered produced. Here is what he said about them and where the fun begins:

As for requests one, two, four and five, the defendant is seeking documents to challenge Miller’s credibility and recollection concerning conversations she had with the defendant. … There can be no doubt that documents that would tend to show that the defendant accurately relayed to the grand jury and the FBI Agents his conversation with Miller, Cooper, and Russert are relevant to the defendant’s effort to defeat the successful prosecution of this action. In the same vein, documents that would make it more or less probable that Miller, Cooper, or Russert did not accurately recount their conversations with the defendant implicate the likelihood that the conversations occurred as stated by the defendant. Thus, Miller, Cooper, and Russert’s recollection of their conversations with the defendant are equally important as the defendant’s recollection of those events. The documents sought by the defendant in requests one, two, four, and five contain information that go to these critical matters. For example, if there exist documents responsive to requests one and two that indicate or suggest that Miller was aware of Ms. Wilson’s affiliation with the CIA before her first conversation with the defendant, then it is at least arguably more likely that Miller, and not the defendant, interjected the topic into the conversation. The same is true for documents responsive to request five, which seeks documents “reflecting or pertaining to a conversation between Judith Miller and George Freeman concerning Valerie Plame . . . . Documents responsive to this request would demonstrate that Miller may have known Ms. Wilson’s name before her conversation with the defendant. For these reasons, and after reviewing the documents submitted for the Court’s in camera review, the Court concludes that documents responsive to requests one, two and five are relevant.

Most interesting are points one and two of the subpoena because they relate to a key figure. One Nicholas Kristof:

1. All documents prepared or received by any employee or agent of The New York Times (including but not limited to Nicholas Kristof and Judith Miller) prior to July 14, 2004 that refer to the wife of Ambassador Joseph Wilson, whether by name or otherwise.

2. All documents, whenever prepared or received, indicating or suggesting that any employee or agent of The New York Times (including but not limited to Nicholas Kristof and Judith Miller) was aware, prior to July 14, 2003, that the wife of former Ambassador Joseph Wilson was employed by the CIA.[9]

This indicates to me they may have finally snagged Kristof’s notes and working papers. Seems the NY Times is hiding quite a bit. The only down side it seems is the documents will not be produced until Miller testifies, and only then if she says something in conflict with the information in the documents. Therefore Libby is going to have to figure out a way to get access to this second set of information. Obviously there is evidence there critical to Libby’s claims. The judge basically admits that.

The judge makes the same claim with Mitchell, there are some documents (emails) but they will only be produced if Mitchell testifies and says something in conflict with the information when she does. Mitchell and Russert are on thin ice here because their public statements indicate a pre-knowledge and discussions about the subject prior to the Novak column during a meeting. We will just stuff this in the ‘grenade’ column, since it can easily go off during the trial.

More on Cooper later.  Addendum:  OK it’s later.  The only thing you need to know about Cooper’s credibility problem is in this line:

This slight alteration between the drafts will permit the defendant to impeach Cooper, regardless of the substance of his trial testimony, because his trial testimony cannot be consistent with both versions.

One version of the article cleared Libby, and one did not apparently.  The judge found the discrepencies obvious, clear and at the root of Fitzgerald’s case.

So where is the case?  Fitzgerald admits Miller never talked to Libby about Plame during their first two meetings.  And it is clear she heard about Wilson and Plame prior to meeting Libby (or at least cannot recall who she heard it from, so cannot testify it was definitely Libby).  Russert says they never talked about Plame, Libby thought they did.  Big deal?  It would have been better for Libby to say he never discussed Plame with Russert (therefore no leak), so the motive to lie is in THE OTHER DIRECTION!  By claiming he did talk about Plame the motive is all wrong.

And now Cooper has major credibility problems due to his own writings.  Where is the case? Someone can’t recall, someone said Libby never lied to him, and someone can’t be counted to tell the facts straight.  For a case that was about leaking Plame’s name to the media, Fitzgerald is off in la la land.