Libby, McClellan and the videotape

Will the judge allow the jury to see tapes of two White House press briefings?

Published January 31, 2007 11:43PM (EST)

When the Scooter Libby trial begins again Thursday morning, Judge Reggie Walton will have to decide whether to let the jury watch videotape of Scott McClellan not clearing -- and then clearing -- Libby of any involvement in the leak of Valerie Plame's identity.

In his opening argument, Libby defense lawyer Ted Wells claimed that the White House had initially scapegoated Libby in order to protect Karl Rove. The evidence: When reporters first asked White House press secretary Scott McClellan about the criminal investigation into the leak, he said it was "ridiculous" to suggest that Rove had been involved -- but then punted when he was asked about Libby. Libby complained to Dick Cheney and drafted talking points for McClellan to repeat: "People have made too much of the difference in how I described Karl and Libby. I've talked to Libby. I said it was ridiculous about Karl, and it is ridiculous about Libby."

Cheney intervened on Libby's behalf -- the vice president's counsel testified to that this week -- and soon McClellan was clearing Libby in his public comments.

Patrick Fitzgerald wants the jury to see the videotapes of McClellan's press briefings. Libby's lawyers -- the ones who raised the issue of the press briefings -- are now resisting, saying that the videos are unfairly prejudicial and irrelevant because there's no evidence that Libby saw them. Fitzgerald's counterargument: It defies logic to think that Libby didn't see them, and they're admissible under a rule of evidence that allows the introduction of "a statement" of a party's "agent or servant concerning a matter within the scope of the agency or employment." Given the "from Libby's mouth to Cheney's ears to McClellan's mouth" nature of this thing, Fitzgerald argued today that McClellan counts as Libby's agent here.

The response from Wells? "Whatever the vice president did, he didn't do it as Mr. Libby's surrogate." And if anyone thinks that McClellan answered to either Cheney or Libby? "You have to talk to President Bush because he's probably somewhere in that chain."

Wells meant that McClellan worked for Bush, not for Cheney -- and not that Bush was in the chain that led to McClellan's clearing of Libby. As Fitzgerald explained, "There's no dispute that the decision to issue [the clearing statement] did not come from the president. It came from the vice president." And Fitzgerald said he intends to ask the vice president about it if -- if -- Libby's lawyers decide to put him on the stand.

By Tim Grieve

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

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