*** Updates at the end, filings now on line ***

Just when I thought Fitzgerald might earn back a modicum of respect, he comes into court and displays a serious lack of seriousness when he argues VP Cheney’s notes on a copy of Wilson’s July 6 article reflect Scooter Libby’s motivation and thoughts days and weeks earlier when he talked to reporters – not to mention 6 months and nearly a year later during questioning. While that argument is silly on the face of it, Fitzgerald knows Libby never saw the notes. The first article I saw on this in the Washington Post, where this caught my eye:

Lawyers for I. Lewis “Scooter” Libby, the indicted former chief of staff to Vice President Cheney, said in a court filing late yesterday that Libby did not see the notes Cheney inscribed on a key newspaper column criticizing the administration’s rationale for invading Iraq until he was shown the annotations in the course of an FBI investigation.

This is truly preposterous. There is nothing connecting Cheney’s notes to Libby’s thoughts. Nothing. The claim that one piece of paper, out of thousands in the OVP tucked away here and there, had some magical impact into Libby’s motivations is laughable. What is worse, we know Fitzgerald is holding onto plenty of other contemporaneous documents which outline the planned response to Wilson – and none of them discuss Plame. All this shows is a glimpse into Cheney’s mind. It has no bearing on Libby’s state of mind and appears to be in the minority of available documents that could expose Libby’s motivations (like plans and notes from him or from meetings he attended).

The next article I noticed on this (boy, would I like a copy of the filing – and time to read and post on it!) was from MSNBC. In this article more details caught my eye:

In a court filing late Friday night, Libby’s lawyers argued that their client testified before the grand jury that he did not see this document until it was shown to him by the FBI in November 2003.

The op-ed article was published July 6, 2003, by former U.S. Ambassador Joseph Wilson.

…

Fitzgerald has argued that the op-ed triggered a campaign in the White House to discredit Wilson’s finding which included outing Wilson’s wife, a classified CIA agent, to reporters.

Libby’s attorney’s say the government evidently wants to argue to the jury that “facts that were viewed as important” by the vice president would have been important to Libby too, and that the Cheney’s notes can be used to show what Libby focused on during July 2003.

“These arguments are tantamount to an acknowledgment that the state of mind of witnesses other than Mr. Libby will be important at trial,” Libby’s lawyers write in their 10-page court filing.

Fitzgerald has been saying over and over again evidence is not permissable unless it goes directly to what Libby said to reporters and then investigators. Cheney’s notes are obviously outside that strict definition and I would guess the Judge is going to toss this out. He has been consistent in not trying the state of mind of the administration and Wilson regarding the run up of the war. Now Fitzgerald risks opening up the entire can of worms.

More on this from Clarice Feldman regarding reporting by Byron York which has some snippets of the actual filing. I will update this when the filing is available. But this is an incredibly weak assertion that notes Cheney made to himself somehow ended up being directions to Libby. If that were true there would be a paper trail. Supposedly the trail Fitz has shows just the opposite.

Update: Tom Maguire just came out with a link to the filings. The Team Libby filing is here. There are more documents Tom has linked, which will have to be the subject of a later post I am afraid. While many focus on the VP, the pandora’s box Fitzgerald just opened against himself is clearly seen in how the defense turns Fitz’s arguments against him and his shady key witness (on whom we reported earlier seems to have some credibility issues).

In the same way that the government finds the views of the Vice President regarding Mr. Wilson and his trip relevant to its case, the defense finds the views of other government officials, such as former Under Secretary of State Marc Grossman, regarding Ms. Wilson relevant to its case. Such information is certainly material to the preparation of the defense, regardless of whether it is ultimately admissible. Just as Mr. Libby was interacting with the Vice President regarding Mr. Wilson’s charges, so was he also interacting with Mr. Grossman and other government officials and their respective agencies. The defense is entitled, for the purpose of preparing its cross examination of such witnesses, to discover what and when they learned about Mr. Wilson’s trip; whether they were involved in the subsequent finger pointing among government agencies that resulted from Mr. Wilson’s allegations; how they learned Ms. Wilson worked at the CIA; whether they thought her employment status was classified; and whether they discussed Ms. Wilson’s affiliation with the CIA with officials other than Mr. Libby. The defense needs these documents to prepare to examine witnesses such as Mr. Grossman about such issues.

I get the feeling Team Libby smells blood in the water with Grossman and Wilson. Wilson admits calling people at State just after the SOTU and up until his Op Ed, and as is now pretty well established Grossman was probably one Wilson talked to a lot. Maybe to the point of them both working to point the finger away from their beloved State Department? It is telling that the defense only mentioned Grossman as one who they require a more complete accounting of his knowledge of Plame.