The court in the Libby case rejects Patrick Fitzgerald’s argument that the court should weigh the risks of disclosing classified information as part of the process of determining what classified documents are admissible in evidence in the Libby trial. Instead, the court concludes that it is ultimately the Executive Branch’s responsibility, not the court’s, to decide whether the risks of revealing classified information outweigh the benefits of continuing with the prosecution. The court cites the Fourth Circuit’s opinion in the Zacarias Moussaoui case.
Now, Libby – as a man who took an oath as a public servant and was zealous in defense of national security – shouldn’t threaten to reveal damaging classified information as a “graymail” tactic against the Government. Then again, if such information is genuinely critical to the ability to give Libby a fair trial, perhaps the prioritization of prosecuting him needs to be re-evaluated. But the citation to the Moussaoui case also reminds us yet again of the fact that the legal system’s need to evaluate all the relevant and admissible evidence is one reason why defendants who mean to make war on the nation should not be tried under that system at all.