Lawyers for Scooter Libby tacitly conceded Wednesday that George W. Bush, through Dick Cheney, authorized the leaking of classified information on pre-war intelligence, but they said that Libby "does not contend" that either the president or the vice president directed him to leak the identity of Valerie Plame.
In a legal brief filed in response to the bombshell Patrick Fitzgerald dropped last week, Libby's lawyers shed light on the defense they intend to mount and the facts that their client does -- and doesn't -- dispute with respect to the roles Bush and Cheney played in leaking information about pre-war intelligence in order to push back against the criticism of former Ambassador Joseph Wilson.
Libby's lawyers refer several times in their brief to Fitzgerald's claim that Libby has testified that Bush authorized the leaking of otherwise classified portions of the 2002 National Intelligence Estimate on Iraq. Tellingly, Libby's lawyers do less than nothing to dispute Fitzgerald's claim. Instead, they insist that Libby's grand jury testimony about the roles played by Bush and Cheney dealt with the leaking of information from the NIE -- and not with the leaking of Plame's identity. "We emphasize that, consistent with his grand jury testimony, Mr. Libby does not contend that he was instructed to make any disclosures concerning Ms. Wilson by President Bush, Vice President Cheney, or anyone else," the lawyers say.
They also argue -- as Fitzgerald has already conceded -- that the prosecutor was wrong to claim that Bush or Cheney had directed Libby to mischaracterize the claim that Saddam Hussein had sought to buy uranium from Niger as one of the NIE's "key judgments." Libby's lawyers further insist that Libby did not, in fact, misrepresent the NIE in his conversations with the New York Times' Judy Miller.
Libby's lawyers use Fitzgerald's claims about the NIE leak as proof that the prosecutor intends to bring a broad case against their client -- and that they're entitled to discovery into a broad range of issues as a result. "The government has effectively conceded that the case extends far beyond Mr. Libby, but refuses to provide defendant with discovery that reflects that fact," they write.
Along the way, Libby's lawyers provide a number of clues as to the sort of defense they intend to mount at trial. They'll argue that Libby had no motive to lie to the grand jury because he never thought that he had leaked classified information in revealing Plame's identity; to that end, they're demanding that Fitzgerald turn over any documents that might show that, the threats of the president notwithstanding, Libby never had any reason to fear that he'd lose his job for leaking. They'll argue that other government officials -- especially those at the CIA -- are biased against Libby, in part because of the "bureaucratic infighting" that came when "controversy over intelligence failures during the spring and summer of 2003 led certain officials within the White House, the State Department, and the CIA to point fingers at each other."
They'll question whether other government officials -- specifically, former White House Press Secretary Ari Fleischer and the State Department's Marc Grossman -- have memories as bad as Libby claims his must have been. They'll likely call Karl Rove to the stand to testify about "Mr. Libbys conversations with Mr. Rove concerning reporters' inquiries about Ms. Wilson." And they say that they may call Joseph Wilson himself as a "hostile witness."
Libby's lawyers also make it clear that -- like Fitzgerald -- they'll make an issue of the role Bush and Cheney played in leaking pre-war intelligence. "At trial," they write, "the government intends to introduce testimony regarding Mr. Libbys disclosures of portions of the contents of the NIE, which appears to be a unique story. Upon hearing about these events, jurors may suspect that Mr. Libby mishandled classified information or did something else wrong when he made these disclosures even if the government does not argue that Mr. Libby's actions were unauthorized or illegal. The defense has the right to argue at trial that Mr. Libby's actions with respect to the NIE were authorized at the highest levels of the Executive Branch, and would be entitled to bolster such arguments with documents and testimony." At another point in the brief, they write: "The governments discussion of the NIE indicates that at trial all aspects of the governments response to Mr. Wilson will be relevant including any actions taken by the president."