So here’s my prediction about how the Scooter Libby case will go down. His two new lawyers (both of whom are tough, experienced and first rate) will demand every bit of classified information arguably relevant to his defense. The independent prosecutor will seek to turn the material over, because he knows that unless they are turned over, the judge may well dismiss the charges. But the intelligence agencies will veto the independent prosecutor’s decision, claiming that disclosure of the requested classified material would endanger national security.
The question will then be posed quite starkly: who makes the final decision about whether to disclose such material? Does the independent prosecutor have final authority? Or do the intelligence branches have final authority? If the latter, will they be beholden to the White House? If so, will the White House use its power to try to get the charges against Libby dismissed by refusing the prosecutor’s request to turn over the classified material, even if it is not really confidential?
This is only one possible scenario, but it is a highly plausible one. It is important, therefore, for the decision to be made now as to how much power the independent prosecutor has. If he does not have the authority to disclose classified material, then he is a Potemkin prosecutor, not an independent one. Stay tuned.