Graymail and missing emails

Libby’s defense strategy: demand classified information the Administration can refuse to produce, thus forcing a dismissal.
Who scrubbed the White House servers?

Tom Maguire pretends not to understand, but Scooter Libby’s demand for information about Valerie Plame’s work for the CIA is of a piece with his demand for copies of the Presidential Daily Briefs: graymail, pure and simple. The idea is to ask for something arguably relevant to the defense which the government can’t allow to appear in open court for national-security reasons, hoping to force a dismissal.

The putative justification for Libby’s demand — that the documents would prove how busy Libby was, thus excusing his lapses of memory before the grand jury — is transparently bogus. Libby isn’t accused of forgetting, but of making up an elaborate confabulation to cover his tracks.

In this case, of course, “the government” and “the prosecution” aren’t identical. GWB’s minions have every incentive to help Libby get off, and if they can do so on the plea of “national security,” so much the better, from their viewpoint.

Naturally, Fitzgerald is going to try to use the anti-graymail provisions of the Classified Information Procedures Act to stymie Libby’s lawyers. Expect delay. But Fitzgerald’s case is clear: since Libby is charged with lying rather than with espionage, material that would have been relevant to an espionage case isn’t relevant to the case actually before the court. [That should, but probably won’t, help silence the people still insisting that if Libby was charged only with lying, Fitzgerald must have concluded that he was innocent of espionage.]

Disposing of another wingnut talking point, Fitzgerald asserts that, as of the Novak column, the only reporters who knew that Valerie Plame worked at the CIA were Woodward, Miller, Pincus, and Cooper. So much for the argument that the fact was widely known in political Washington; I’m still curious about who, if anyone, told former chief RNC flack and current NRO contributor Clifford May.

Note also — this is of particular interest to those of us who still have money down on a Rove indictment in this case — Fitzgerald’s reference to the fact that the grand jury investigation is “ongoing,” a second reference to an “ongoing investigation,” and a third which specifically refers to “other subjects of the ongoing investigation.”

Finally, as Kevin Drum and Josh Marshall note, Fitzgerald’s mention that some White House emails from 2003 have been deleted from the WH servers is pure dynamite. Emails don’t erase themselves. Does the phrase “conspiracy to obstruct justice” ring a bell?

(ReddHedd has additional thoughts, as does Georgia10 at Daily Kos.)

Steve Aftergood, the openness-in-government maven at the Federation of American Scientists, gets it right (as usual):

Bottom line: Accidents happen and there could be a benign explanation, but this is highly irregular and invites suspicion. A particular subset of records sought in a controversial prosecution have gone missing. I think what is needed is for the national archivist to ascertain what went wrong and how to ensure it won’t happen again.”

Hat tip: The PlamePage.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: