Fitzgerald: Libby lawyers are "graymailing" the government

Bad news for Rove: The special prosecutor says his investigtation is "continuing."

Published February 17, 2006 4:09PM (EST)

In a legal brief filed late Thursday in federal court, special prosecutor Patrick Fitzgerald accuses lawyers for Scooter Libby of trying to "graymail" the government by demanding access to thousands of pages of classified documents that Fitzgerald says are irrelevant to his defense.

"Graymailing" -- a tactic used to varying degrees by defendants in the Iran-Contra scandal of the 1980s -- occurs when a government official charged with a crime demands access to large quantities of classified material in an attempt to force prosecutors either to put national security at risk by producing the material or put the prosecution at risk by allowing the defendant to argue that he can't get a fair trial without it.

Libby and his lawyers, Fitzgerald says, are doing exactly that now.

Libby has demanded the production of approximately 277 presidential daily briefings from 2003 and 2004, apparently to show that he was so "preoccupied" with important national security matters that he might have a hard time remembering the truth about what he told whom about Valerie Plame. Fitzgerald says the request is "nothing short of breathtaking."

"As the defendant well knows, the PDB is an extraordinarily sensitive document which implicates very serious concerns about both classified information and executive privilege," Fitzgerald writes in a brief opposing Libby's motion to compel production of the documents. "When President Bush declassified and made available a portion of the August 6, 2001, PDB discussing Osama bin Laden in conjunction with the work of the ... 9/11 Commission, it apparently marked the first time that a sitting president has made a PDB publicly available. The defendant's effort to make history in this case by seeking 277 PDBs in discovery -- for the sole purpose of showing that he was 'preoccupied' with other matters when he gave testimony to the grand jury -- is a transparent effort at 'greymail.'"

Fitzgerald is also resisting Libby's attempts to obtain documents relating to the classification of Plame's job at the CIA, the damage that Libby's leaks caused, and conversations other administration officials had with reporters about Plame or her husband, former ambassador and Iraq-war critic Joseph Wilson. Those documents are irrelevant to Libby's defense, Fitzgerald says, because he is not charged with revealing Plame's identity but with lying about it afterward.

While Fitzgerald's brief isn't filled with quite as many clues and nuggets as other recent court filings, the prosecutor says there's a reason he's being circumspect. Additional details about the case are contained in a separate filing made under seal, he says, because releasing them now would reveal the "strategy or direction of the investigation," which he says is -- hello, Mr. Rove! -- "continuing."

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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