Libby's lawyers ask to dismiss perjury case on Yahoo! News

Lawyers for an aide to Vice President Dick Cheney, who faces perjury charges, asked a judge on Thursday to throw out the case on the grounds that the prosecutor was appointed improperly.

Since both Attorney General Alberto Gonzales and former Attorney General John Ashcroft removed themselves from the investigation because of their close ties to the White House, Special Prosecutor Patrick Fitzgerald reports to David Margolis, a career Justice Department lawyer.

Lawyers for Lewis "Scooter" Libby argued that because Fitzgerald does not report to the attorney general, he should not have been appointed by a deputy at the Justice Department.

"Because he was not appointed to that office by the president with the advice and consent of the Senate, he holds that authority improperly," Libby's lawyers wrote.

Fitzgerald was picked by then-Deputy Attorney General James Comey in December 2003 to investigate who leaked the identity of undercover CIA agent Valerie Plame to reporters after her husband accused the Bush administration of twisting intelligence on Iraq's nuclear weapons to justify the 2003 invasion.

Plame's career at the CIA effectively ended after her identity was made public.

Libby is charged with lying to a grand jury about his conversations with reporters about Plame. He has pleaded not guilty and is scheduled to go to trial in January 2007.

In other filings Libby's lawyers have argued that any inconsistencies in his testimony come from a faulty memory.

Lawyers Say Libby Needs to Refresh Memory on Plame Talk

By Carol D. Leonnig
Washington Post Staff Writer
Thursday, February 23, 2006; A05



Vice President Cheney's former chief of staff was so consumed with pressing national security concerns in 2003 and 2004 that he undoubtedly forgot details of conversations he had about undercover CIA operative Valerie Plame, his defense lawyers argue in new court filings.

Attorneys for I. Lewis "Scooter" Libby insist they need hundreds of pages of classified daily briefings prepared for President Bush to show that Libby did not intentionally lie about discussing Plame with reporters, as prosecutors allege. They contend that he was preoccupied with more serious matters when the conversations took place and when investigators questioned him months later.

Libby, 55, faces charges of committing perjury, making false statements and obstructing justice in the investigation of whether administration officials broke the law by disclosing Plame's identity to the media.

"One of the central themes of Mr. Libby's defense at trial will be that any misstatements he made during his FBI interviews or grand jury testimony were not intentional, but rather the result of confusion, mistake or faulty memory," the lawyers wrote in a court document filed late Tuesday. "Given the urgent national security issues that commanded Mr. Libby's attention, it is understandable that he may have forgotten or misremembered relatively less significant events [such as] alleged snippets of conversations about Valerie Plame Wilson's employment status."

The filing also indicated that Libby, in his first grand jury appearance in early 2004, apologized, saying his memories could be inaccurate because he read 100 to 200 pages of material a day and usually worked from 6 a.m. to 8 p.m.

"I can't possibly recall all of the stuff that I think is important, let alone other stuff that I don't think is as important," he said.

Special Counsel Patrick J. Fitzgerald argued in court filings last week that Libby's attorneys were attempting to derail the prosecution with a "breathtaking" request for nearly a year's worth of Presidential Daily Briefs, the closely guarded document that summarizes threats to the United States and is almost never released.

In announcing Libby's indictment last October, Fitzgerald accused Libby of displaying a detailed but selective memory with investigators. Libby told prosecutors he believed he learned that Plame worked at the CIA from NBC reporter Tim Russert in a telephone call in July 2003. But he forgot that Cheney had actually told him that information the previous month, and that three days before the Russert call, Libby passed it on to then-White House press secretary Ari Fleischer.

Today, defense lawyers are also expected to file a motion asking U.S. District Judge Reggie B. Walton, who is presiding over the case, to dismiss all charges against Libby. On Friday, Fitzgerald and the defense attorneys are scheduled to argue at a court hearing whether Fitzgerald should have to provide Libby with classified material and information about reporters and administration officials questioned in the investigation.

Libby's trial is scheduled to start in January 2007, but many legal experts predict that legal battles over such questions could delay it.

© 2006 The Washington Post Company