Tom Maguire linked to this trasncript at Talk Left (thanks for posting this Jeralyn Merrit!) from a hearing regarding pre-tirial motions on February 24, 2006 in the Libby case. Some portions jumped out at me because they illustrated a fairly in-experienced Special Counsel. Like a lawyer just starting out in trial cases.

This first order of business is the confusion Fitzgerald has produced by not ending his investigation, presumably into Rove’s actions, while starting the trial for Libby. The problem comes up with evidence the defense has, which cannot be made public due to the ongoing Rove investigation, but can be used to by defense to discuss with witnesses (i.e., reporters) for questioning. So Fitzgerald now needs to watch out for exposing names and other information still pending in the investigation by redacting material. And he seems to be struggling with it because he apparently left one name exposed, and because of this, wanted to quash the entire document. Fitzgerald admits his mistake, but claims that is something defense must deal with:

MR. FITZGERALD: No. I can refer the court and counsel, for example, to page 9 and paragraph 22. There is a 1 sentence indicating some documents we disclosed to the defense. That frankly, if I knew that I would be revealing it to the public, concerns about people not charged in a crime, I wouldn’t have shared it with the defense in the first place.

The judge agrees someone related to the current investigation should not have their name in the paper – but he should know that and should have caught the error! The judge later comes up with the obvious answer – double check that everything is redacted and pass it to the defense to concur. What is a joke is Fitzgerald’s response:

MR. FITZGERALD: My concern being I’ve learned more about open and closed courtrooms than I cared to know in the last year and half and we’re trying to do it the right way.

The fool brought this upon himself. He should have known this would happen with the open investigation still prattling on to nowhere of import. How could this guy be a senior prosecutor in the DoJ and not understand the open/closed courtroom situations and implications?

They then move onto the next subject, and notice how Fitzgerald is not even on the same page as the judge and defense:

THE COURT: Okay. I think we can start to proceed, oh, yes, we have the other matter regarding some changed dates that I understand counsel is requesting. The date we have now for an additional motion to compel is due on March 3rd. I understand counsel wants to change that to March 20 and that the reply would then be due on March 27. I hate to change dates but if there’s good reason for it.
MR. FITZGERALD: And the reason is on the government’s behalf. We learned in comparing notes with defense counsel, when they asked about a particular document, that one set of 260 pages but an important set of 260 pages had not been produced that we thought had been produced. Therefore, we are producing them today. They are notes of Mr. Libby. So they are not just 260 pages out of a large number. They are very important. So that in setting the dates for the Section 5 notice we had lead the court to believe because we understand that the defense had all those relevant notes and they don’t and so we want the court to be aware that it is something we inadvertently did not produce initially and that’s the cause for the delay.
MR. JEFFRESS: Actually Your Honor’s question was not about that. Your Honor’s question was about the discovery motion.

THE COURT: Right.

Two blunders in one comment. He is obviously blabbing on about a mistake his office made in supply Libby HIS NOTES! What kind of prosecutor forgets to give the man his notes for his defense? But that wasn’t even the subject. We are on the second topic early on in this hearing and Fitzgerald looks like novice going to his first trial.

There is one interesting thing to note here for the timeline experts – Fitzgerald is not producing all of Libby’s notes from the time span requested:

THE COURT: … Do you now have all of the notes for the relevant time period that you have requested or are there still other notes that you still haven’t received? I think you’ve made a request for notes from May 6, 2003, through March 24, 2004.

MR. WELLS: That is correct, Your Honor. We do not have all those notes. The government objects to our request. What the government produced to us is the following. Mr. Libby’s notes from May 6 through May 10, from June 1 through July 25, July 28 and 29, September 27 through October 13.

While some of this may be to reduce work, I am struck by the gaps which are May 11-31, July 26-27, and then July 29th to September 27th. The first gap is really important, that is when the uproar started from the Kristof story. And the 2 day gap in July looks fishy as all get out. But even with these gaps, there are holes because Fitzgerald has decided what subset of his notes and emails he can have from even these date ranges!

MR. WELLS: Yes. What the government did was they made a cut of what the government thought might be relevant during the grand jury investigation having no interaction with us. This was a year ago.

THE COURT: Are there notes that you don’t have that would have covered the period between when Mr. Libby is first to have spoken I guess it was to Mr. Russert until such time as he last appeared before the grand jury?

MR. WELLS: Correct. Because what the government did, if you see these are disjointed dates and we are asking for them to fill in the notes. That is what is on the table today.

We know Fitzgerald has information from the government files that challenges a lot of what he claims in the indictment. Especially the idea of a plot to retaliate against Wilson by outing Valerie. He has documents that fail to mention Valerie in efforts to address Joe Wilson – possibly tons of them:

Some documents produced to defendant could be characterized as reflecting a plan to discredit, punish, or seek revenge against Mr. Wilson. The government declined to produce documents relating solely to other subjects of the investigation, even if such documents could be so characterized as reflecting a possible attempt or plan to discredit or punish Mr. Wilson or Ms. Wilson.

Fitz is playing a really career-ending game hear. If there is critical information in these files he really should be charged with misconduct. And again we see Fitzgerald possibly cherry picking evidence.

THE COURT: So the other notes that you haven’t turned over, you are saying you don’t have those in your office.

MR. FITZGERALD: Right. Never had, never looked at them, never sought them.

THE COURT: I assume you can acquire them since you were able to acquire the ones that you turned over. MR. FITZGERALD: Yes, Your Honor. They obviously involve classified information issues and involve issues of executive privilege and confidentiality. But June 1 to July 25 —
THE COURT: But no different than the ones that you already have?

You can almost hear the frustration in the judges voice as Fitz makes more out of this than is warranted. Fitz arguments are weak and have a child-like naivette to them. Somehow he has convinced himself that Libby would have no problem remembering details no matter what else was going on:

FITZGERALD: All that other time periods which is a vast amount of material, we say is not relevant since it concerns other matters like the George case, a preoccupation issue, and to know what he’s working on to get it to the level of detail that’s required, I don’t know that that is material because you can know you are working on a nuclear bomb without getting into the details of what you are doing on a particular day and implicating both issues of privilege, classified information and a lot of work to go through hundreds of pages and transliterate and triggered those issues.

What a bunch of hooey. The more important or complex the other issues of the day the much less likely Libby remembers calls from reporters. Remember his efforts where on Wilson’s lies. So far the reporters were the one’s bringing up Valerie, off subject in Libby’s mind. But the example of building a nuclear bomb reflects a real simpleton’s intellect here.

Possible more on this later.