Lawyers for Scooter Libby say they're insulted by Patrick Fitzgerald's claim that they're trying to "graymail" the government by demanding access to classified documents that have nothing to do with the lies Libby is alleged to have told federal investigators and Fitzgerald's grand jury.
In a reply brief filed in federal court late Tuesday, Libby's lawyers say the materials are needed to show, among other things, that Dick Cheney's former chief of staff was so busy dealing with the affairs of the world that he shouldn't be expected to remember what he said to whom about Valerie Plame. "Denying Mr. Libby's requests because they pertain to 'extraordinarily sensitive' documents would have the effect of penalizing Mr. Libby for serving in a position that required him to address urgent national security matters every day," the lawyers say.
The Associated Press picks up this excerpt from Libby's grand jury testimony: "I tend to get between 100 and 200 pages of material a day that I'm supposed to read and understand and I -- you know, I start at 6 in the morning and I go to 8 or 8:30 at night. I can't possibly recall all the stuff that I think is important, let alone other stuff that I don't think is as important ... I apologize if there's some stuff that I remember and some I don't."
As we've said before, that would be a fine legal argument if Libby were somehow charged with telling the grand jury that he didn't remember much about the outing of Valerie Plame. In fact, he's charged with telling the grand jury -- again and again, in no uncertain terms -- that he didnt participate in the outing when he did. During one grand jury appearance, Libby was asked about his "specific recollection" of his conversation with Time's Matthew Cooper on or about July 12, 2003, and he offered up specific details in response -- details Fitzgerald says were false. During another grand jury appearance, Libby insisted that it was "a fact" that he told reporters that he'd heard about Plame's employment from other reporters. The prosecutor followed up: "You're certain as you sit here today that every reporter you told that Wilson's wife worked for the CIA, you sourced it back to other reporters?" Libby responded: "Yes, sir. Because it was important for what I was saying and because it was -- that's what -- that's how I did it." Fitzgerald says it wasn't a fact, and that that isn't how Libby "did it."
Being busy is a good excuse for not remembering at all. It's not much of an excuse for saying, under oath, that you do remember when you don't -- no matter how important you think you are.