Former Aide to Cheney Gains Access to His Notes - New York Times

By NEIL A. LEWIS
WASHINGTON, Feb. 24 — I. Lewis Libby Jr., the former chief of staff to Vice President Dick Cheney who is charged with lying to investigators about his role in the disclosure of the identity of a C.I.A. officer, won the right Friday to review his handwritten notes for a nine-month period surrounding the publication of the information.

But the federal judge hearing Mr. Libby's case seemed markedly skeptical to a second request that the defense also be given the highly classified documents known as the President's Daily Brief for a similar period. The judge, Reggie B. Walton, suggested that the requests for those documents by Mr. Libby's lawyers might "sabotage" the case against him.

Mr. Libby has been charged with lying to investigators about his role in the disclosure of Valerie Wilson's role as a Central Intelligence Agency operative.

In court on Friday, his chief defense lawyer, Theodore H. Wells Jr., argued that Mr. Libby needed the highly sensitive documents he was privy to as Mr. Cheney's top assistant and national security adviser to mount his defense. Defense lawyers have said that if Mr. Libby's statements to investigators were untrue, it was a case of innocent confusion or faulty memory because of his preoccupation with weightier national security matters at the time.

Mr. Wells said that even though the daily briefs were so valuable that they are often called the nation's "family jewels," he needed to show the jury the kinds of momentous issues with which Mr. Libby was involved.

But Judge Walton, who deferred a final ruling on the matter, said the briefs were so sensitive that "the White House will never agree" to release them, adding, "If I order this, it will sabotage the prosecution."

The judge also suggested that Mr. Libby's personal notes for that period, which he had just ordered to be turned over to the defense, could be sufficient to remind Mr. Libby of the issues he was involved in.

Patrick J. Fitzgerald, the special counsel prosecuting Mr. Libby, told the judge that if he agreed to order the intelligence briefs made available to Mr. Libby, the result would be months of arguments over executive privilege and relevancy that "would derail the case."

Mr. Fitzgerald has said in court papers that the request for the briefs was an obvious effort at "graymail," a technique in which defense lawyers demand highly sensitive information from the government to force the prosecution to choose between providing the information or dropping the case. He noted that the disclosure of part of the Aug. 6, 2001, daily brief to the Sept. 11 commission was the sole instance of a daily brief's being publicly disclosed and that occurred only after much wrangling.

Judge Walton scheduled Mr. Libby's trial to begin Jan. 7, 2007, a long lead time to allow for expected pretrial battles over difficult issues like the presidential briefs and whether reporters will resist subpoenas to testify.

Mr. Fitzgerald said Friday that he would readily agree that Mr. Libby had an important job and dealt with weighty matters. But he said that the presidential briefs would provide far more detail than Mr. Libby needed to make that argument.

Further, he said, in July 2003 when Mr. Libby had conversations with three reporters, he was "deeply involved" in dealing with the issue of Ms. Wilson and her husband, Joseph C. Wilson IV. Mr. Wilson, a former ambassador, had provoked the anger of the Bush administration when he asserted that the White House had exaggerated and twisted intelligence about Saddam Hussein's efforts to buy uranium in Africa in order to make the case for invading Iraq.

Mr. Wilson has said the White House blew his wife's cover to retaliate and to discredit his claims.

Judge Walton also rejected a request by Mr. Libby's lawyers to obtain information about an unnamed official who worked in the administration but not in the White House who discussed Ms. Wilson's identity with reporters.

Libby's Team Plans to Subpoena Media - Los Angeles Times

Lawyers have said they intend to cast a wide net to raise doubts about testimony against him. Those called will have until April to respond.
By Richard B. Schmitt
Times Staff Writer

February 25, 2006

WASHINGTON — Lawyers for I. Lewis "Scooter" Libby said Friday that they soon planned to subpoena reporters and news organizations, and a federal judge set the stage for a showdown in late April on whether the media would have to comply with the subpoenas in order to afford the former White House aide a fair trial.

U.S. District Judge Reggie B. Walton also said a special prosecutor would have to turn over hundreds of pages of notes compiled by Libby while he was chief of staff to Vice President Dick Cheney. But Walton put off a defense request that the prosecutor turn over highly classified presidential daily briefs that Libby received while in the White House.

His lawyers have said the daily briefs were crucial to showing that Libby was immersed in matters of state and didn't intentionally mislead investigators and a grand jury, as the government has alleged.

Libby, 55, was indicted in October on perjury and obstruction charges. Prosecutors contend he lied to authorities about his role in the July 2003 unmasking of CIA operative Valerie Plame. Libby told authorities that he first learned the identity of Plame from a television journalist; the government contends that he in fact deliberately acquired and disseminated information about Plame and her husband, Joseph C. Wilson IV, a former U.S. envoy who had criticized the Bush administration over the Iraq war.

Lawyers for Libby say they have reason to question the accuracy of statements that journalists have made about him to special prosecutor Patrick J. Fitzgerald. They are also seeking to prove that information about Plame was widely known among reporters at the time, and that Libby therefore would have no incentive to lie about his knowledge of her.

Walton set an April 7 deadline for recipients of the subpoenas to respond to whether they intended to comply with them, and a date of April 21 for a hearing to consider objections.

"We want the issue to be joined as quickly as possible," Theodore V. Wells Jr., one of Libby's lawyers, said Friday at a hearing in federal court in Washington. He did not indicate how many reporters or news organizations would be subpoenaed, although he and the rest of the Libby legal team have indicated they would cast a wide net.

Fitzgerald, the U.S. attorney in Chicago who was appointed more than two years ago to investigate whether Plame's identity was disclosed in violation of a federal law protecting covert agents, previously subpoenaed reporters from news organizations including Time magazine and the New York Times.

Those moves triggered a 1st Amendment battle that went to the Supreme Court, and resulted in one journalist who initially refused to comply, former New York Times correspondent Judith Miller, spending 85 days in jail.

The subpoenas in Libby's case are also likely to touch off a legal battle over competing considerations — the rights of journalists to protect conversations with confidential sources, and the right of defendants to a fair trial. Depending on the scope of the subpoenas, lawyers for Libby might also seek information about individual reporters and their reputation for honesty and accuracy, some media experts have said.

The battles over journalists and classified information have left Walton struggling to keep Libby's trial on track for January 2007.

A major stumbling block, which Walton left unsettled Friday, was a request from Libby's lawyers to see dozens of presidential briefing papers that he received while working for Cheney and which are considered some of the most sensitive information in government. Cheney has called those documents "the family jewels" of the government.

Wells said those documents were essential to show the detail and level of immersion that Libby found himself in as a senior official. Wells also signaled that the defense might call an expert witness to testify about memory and recall, presumably to buttress claims that any lapses were not unusual for a person of his stature.

"The very heart of our defense is about the family jewels," Wells said. "We need the notes and the PDBs to put together a story to make the jury believe that his defense is not concocted."

Walton reserved judgment on the request but expressed concern because he said the Bush White House probably would invoke executive privilege and refuse to turn over the classified reports.

"Isn't this going to sabotage the ability of this case to go forward?" he asked. "If the executive branch says, 'this is too important to the welfare of the nation and we're not going to comply,' the criminal prosecution goes away."

Walton said he would decide the issue within a few weeks. He ordered Fitzgerald to have the CIA prepare a filing on how difficult it would be to find and collect the information.

Walton also said Fitzgerald could keep secret the identity of another government official who allegedly revealed the identity of Plame to journalists before Robert Novak first disclosed it July 14, 2003, in a syndicated column.

One government official who has acknowledged speaking with reporters around that time was White House political aide Karl Rove, who remains under investigation.

But Libby's lawyers apparently were targeting a third official who talked with reporters during that period, including Washington Post reporter and editor Bob Woodward. The identity of that official has not been revealed.

William Jeffress, another lawyer for Libby, said at the hearing that the defense needed the information to show that other reporters were discussing Plame. Jeffress indicated the official did not work in the White House but elsewhere in government.

Update 4: Identity of Official to Be Kept From Libby - Forbes.com

Former White House aide I. Lewis "Scooter" Libby, charged with perjury in the CIA leak case, cannot be told the identity of another government official who is said to have divulged a CIA operative's identity to reporters, a federal judge ruled Friday.

At the same time, U.S. District Judge Reggie B. Walton said Libby could have copies of notes he took during an 11-month period in 2003 and 2004 while serving as chief of staff to Vice President Dick Cheney.

The judge also set the stage for a showdown in late April over the defense's plans to subpoena reporters and news organizations for notes and other documents in the leak of Valerie Plame's identity.

During a hearing Friday afternoon, Walton said Special Counsel Patrick Fitzgerald can keep secret the other government official's identity because that person has not been charged and has a right to privacy.

The judge put off deciding whether Libby can have access to highly classified presidential daily briefs, summaries of intelligence on threats against the United States that Libby and Cheney received six days a week from a CIA official.

Walton said he is concerned that Libby's request could "sabotage" the case because President Bush probably will invoke executive privilege and refuse to turn over the classified reports.

"The vice president - his boss - said these are the family jewels," the judge said, referring to Cheney's past description of the daily briefings. "If the executive branch says, 'This is too important to the welfare of the nation and we're not going to comply,' the criminal prosecution goes away."

Libby, 55, was indicted last year on charges that he lied about how he learned Plame's identity and when he subsequently told reporters. Libby's trial is set for January 2007.

The CIA operative's identity was published in July 2003 by syndicated columnist Robert Novak after Plame's husband, former U.S. Ambassador Joseph Wilson, accused the Bush administration of twisting intelligence about Iraq's efforts to buy uranium in Niger. The year before, the CIA had sent Wilson to Niger to determine the accuracy of the uranium reports.

Libby's lawyers and Fitzgerald disagreed over whether the unidentified government official - who does not work at the White House - was referring to Plame or her husband when he said, "Everyone knows," during a taped interview with investigators.

The defense said the official meant that most reporters knew that Plame worked at the CIA, as Libby testified before a federal grand jury. But Fitzgerald said the reference was to Wilson, who was not identified in initial media reports about the trip to Niger.

Ted Wells, another Libby lawyer, said the judge shouldn't worry about provoking the president, the CIA or the media and needs to take time to make sure Libby gets the evidence he needs to defend himself.

"If it's done in a quick and dirty way, he's going to be convicted," Wells said.

Walton denied a defense request to stop Fitzgerald from filing information that only the judge can review, such as strategy memos and classified information that he wants withheld from Libby's legal team. Walton said he needs to see what Fitzgerald is withholding from the defense to ensure the prosecutor is making the correct call.

The defense was told that the White House had recently located and turned over about 250 pages of e-mails from the vice president's office. Fitzgerald, in a letter last month to the defense, had cautioned Libby's lawyers that some e-mails might be missing because the White House's archiving system had failed.

The 2 1/2-hour hearing not only kicked off the battle over how much classified information a jury will hear when Libby's case goes to trial, but also showed how cumbersome it is to deal with such secret evidence.

When Wells tried to hand Walton a blue pouch - complete with a key - containing classified documents, a court security officer called the judge's clerk over and whispered instructions, presumably on its handling.

"I would not be a good safe-breaker," Walton joked as he fumbled with the pouch's lock before opening it.