Judge Is Asked To Block Libby Defense From Discussing Lack of Stronger Charges
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Prosecutors are asking a federal judge to preclude lawyers for a former White House aide facing trial for lying and obstruction of justice, I. Lewis Libby, from telling jurors that the government failed to charge Mr. Libby or anyone else in connection with the event that triggered the probe, the disclosure of the identity of a veteran CIA officer in 2003.
Meanwhile, defense attorneys are seeking to prevent jurors from learning about any damage caused by the leak about the CIA operative, Valerie Plame. The defense also wants to keep the jury in the dark about the 85-day incarceration of a New York Times reporter, Judith Miller, after she was cited for contempt for refusing to testify about her contacts with Mr. Libby, who was then chief of staff to Vice President Cheney.
The legal maneuvering came as the two sides faced a deadline yesterday to file motions aimed at restricting evidence or arguments to be presented at Mr. Libby’s trial, which is set for January.
The special prosecutor assigned to the inquiry, Patrick Fitzgerald, asked Judge Reggie Walton to preclude defense attorneys from discussing during the trial why Mr. Libby was not charged with deliberately outing Ms. Plame. Mr. Fitzgerald also asked to exclude any evidence about why others were not charged in the case.
“The fact that neither Libby nor anyone else has been charged with a crime for the disclosure of classified information is irrelevant to whether Libby committed the crimes charged in the indictment,” Mr. Fitzgerald argued. He wrote that discussion of the government’s charging decisions could lead to “unfair prejudice” and “jury nullification.”
“The jury might impute to the government certain beliefs based on the decisions not to charge certain crimes and improperly draw inferences regarding the government’s view of the conduct, such as the conclusion that the government believes the defendant’s behavior in disclosing information was proper,” Mr. Fitzgerald said.
The Justice Department selected Mr. Fitzgerald, the top federal prosecutor in Chicago, to examine whether any laws were broken in the disclosure of Ms. Plame’s identity in a newspaper column by Robert Novak in 2003. Initial speculation suggested that White House officials engineered the leak because Ms. Plame’s husband, Joseph Wilson, had criticized President Bush for claiming that Iraq sought nuclear materials in Africa.
It emerged recently that the initial leak to Mr. Novak came from the deputy secretary of state at the time, Richard Armitage, though other reporters have testified that they learned of or confirmed Ms. Plame’s CIA employment from Mr. Libby and another White House aide, Karl Rove.
No one has been charged criminally in connection with the leak itself, though Ms. Plame has brought a civil suit against various officials.
Mr. Libby resigned after being indicted last year on charges that he lied about his contacts with reporters and about his knowledge that Ms. Plame’s status was classified. He has pleaded not guilty.
Defense lawyers asked Judge Walton to block all testimony about the legal maelstrom that surrounded the government’s efforts to get testimony from reporters believed to have learned of Ms. Plame’s identity from officials in the government.
The defense filing revisits a dispute about how clearly Mr. Libby informed Ms. Miller, who later left the Times, that he wanted her to testify about their discussions. Mr. Libby’s attorneys have insisted that they left no doubt about the White House aide’s position. Ms. Miller and one of her lawyers, Floyd Abrams, have said they picked up signals that Mr. Libby’s waiver was less than voluntary. The reporter spent nearly three months in jail in Virginia before the waiver was clarified and she testified that she was told about Ms. Plame by Mr. Libby.
Defense lawyers said the details might lead the jury to think, unfairly, that Mr. Libby engineered a cover-up. “The introduction of these issues would undoubtedly cause jurors to wonder whether Ms. Miller went to jail in an effort to shield Mr. Libby from liability, and whether Mr. Libby is to blame for her incarceration,” the defense team wrote.
Mr. Libby’s attorneys are also seeking to exclude from the trial any talk that Ms. Plame’s employment at the CIA was classified or covert. Such a ruling would leave jurors with little or no understanding of why Mr. Fitzgerald’s investigation began. Instead, Mr. Libby’s trial would become a sterile, seemingly-random discussion of inconsistent recollections between a former White House official and several reporters about conversations four years earlier.
However, the defense argued that such a constrained trial is the necessary result of the government’s refusal to hand over documents detailing the secrecy surrounding Ms. Plame’s employment. “It would be manifestly unfair to allow the government to put into issue a matter that Mr. Libby has been denied any real opportunity to investigate and contest,” the defense lawyers wrote.
Mr. Libby’s legal team also wants to block Mr. Fitzgerald from suggesting that Mr. Libby did anything wrong when he discussed contents of a National Intelligence Estimate on Iraq with journalists, including Ms. Miller. Mr. Libby has claimed that he was told by Vice President Cheney that Mr. Bush authorized the release of key findings in the report, which was highly-classified until that point.
One of yesterday’s defense filings discloses that two other White House employees were privy to at least part of another conversation where Mr. Libby allegedly discussed Ms. Plame’s CIA post with a reporter. The defense said Mr. Cheney’s spokesman, Catherine Martin, and Mr. Libby’s assistant, Jennifer Mayfield, were present when Mr. Libby spoke by phone with Matthew Cooper of Time magazine.
However, it’s unclear whether Ms. Martin and Ms. Mayfield would have understood the import of Mr. Libby’s alleged comment about the CIA operative. Mr. Cooper has said that when he said he’d been told Ms. Plame worked at CIA, Mr. Libby replied something to the effect of, “Yeah, I’ve heard that, too.”
Mr. Cooper got his initial tip about Ms. Plame from President Bush’s top political adviser, Karl Rove. Mr. Rove was investigated intensely by Mr. Fitzgerald, who ultimately decided not to seek charges.
Democrats have urged Mr. Bush to fire Mr. Rove or strip him of his security clearance. The White House has not responded to the suggestion.
Judge Walton has said he wants all written arguments on the pre-trial motions wrapped up by Nov. 17 because he is scheduled to leave for Jamaica the next day. “It is particularly important for the expeditious resolution of these motions that Judge Walton have something to work on while relaxing on the beach,” he wrote in an order earlier this month.