Leopold: Preview - Fitzgerald's Case Against Libby

Opening statements in the criminal trial against I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff, are still a week away, but the special prosecutor has already provided a preview into the government's case against the ex-White House official accused of lying to the FBI and a grand jury about his role in the leak of a covert CIA operative.

According to court documents, Special Prosecutor Patrick Fitzgerald has said he plans to focus on the week of July 7 to 14, 2003, during which Libby allegedly told several reporters that Valerie Plame Wilson worked for the CIA and was responsible for convincing the agency to send her husband, former ambassador Joseph Wilson, to Niger in 2002 to investigate claims that Iraq had sought 500 tons of uranium from the African country.

"I'm not going to argue it was the most important issue consuming the Bush administration," Fitzgerald told US District Court Judge Reggie Walton during a February 24 federal court hearing, a transcript of which was obtained by this reporter.

Fitzgerald said, according to the transcript, that he will argue that Mr. Libby was consumed with Wilson more than he should have been during that week. "But he was, and you can look at the time he spent with people," Fitzgerald added. "When talking about Mr. Wilson for the first time, he described himself as a former Hill staffer. He meets with people off-premises. There were some unusual things I won't get into about that week. At the end of the day, we're talking about someone who spent a lot of time during the week of July 7 to July 14 focused on the issue of Wilson and Wilson's wife."

Libby told FBI investigators and testified before a grand jury that he had found out about Plame Wilson's CIA employment from reporters on July 9 or 10, 2003. But Fitzgerald said Libby discussed Plame Wilson with former White House press secretary Ari Fleischer on July 7, 2003, and Fleischer testified that Libby said the information was "hush, hush," "on the QT," and not widely known.

Libby's defense attorneys, William Jeffress and Theodore Wells, responded to Fitzgerald's comments, saying that Plame Wilson was a blip on Libby's radar screen and that Libby was too busy dealing with terrorism, the Iraq War and national security issues to pay any attention to her.

Last year's hearing also shed light on the defense strategy that will be employed in an attempt to prove Libby's innocence. Instead of focusing on the obstruction of justice and perjury charges their client is charged with, Libby's attorneys have attempted to downplay the importance of Plame Wilson's CIA status and work with the agency. That strategy has been carried out in recent court filings as well.

By devaluing Plame Wilson's work and status with the agency, Libby's attorneys said they hope to prove to a jury that their client had no incentive to lie to investigators and the grand jury about how and when he found out she was a CIA employee as well as Ambassador Wilson's wife.

Proving how adept the defense can be in circumventing the facts related to the perjury and obstruction of justice charges filed against Libby, at one point during the hearing, Wells suggested that Plame Wilson's undercover status should have been declassified five years ago, but wasn't because of a bureaucratic error.

"I need to understand, is she covert or not," Wells said. "If she's classified, is she really classified or is [she] just classified because some bureaucracy didn't unclassify her five years ago when they should have? I just want to know the facts."

Furthermore, Libby's attorneys have once again argued that Fitzgerald should be required to provide the defense with a so-called damage assessment on the Plame Wilson leak. The defense has argued that since no damage was done to national security by leaking Plame Wilson's identity, the case has no merit.

But Fitzgerald said he does not intend to offer any proof at trial of "actual damage" as a result of the leak, because the case is about perjury and obstruction of justice.

"We don't intend to offer any proof of actual damage," Fitzgerald told Judge Walton in response to Wells's comments. "We're not going to get into whether that would occur or not. It's not part of the perjury statute. It's not part of the underlying statutes."

Wells fired back.

"Mr. Fitzgerald has indicated correctly that, under the perjury or obstruction statues, showing actual damage is not an essential element of the offense," Wells said. "We both agree with that. But there's no question he is going to stand up in front of that jury, and he's going to convey to that jury that Mr. Libby has engaged in a very serious crime involving disclosing the identity of a CIA agent. It's in the indictment. I don't even understand how the government can draft the indictment, put these issues in play, and then act like it's not an issue at trial.

Judge Walton indicated that if Fitzgerald argued that national security had been damaged by the leaking of Plame Wilson's covert status, he would likely determine it would not be admissible.

Regarding the materiality of the perjury charge, Fitzgerald said, "it's a serious matter if he lied about whether or not he talked about a CIA employee's association. We believe that there will be evidence at the trial that at times he talked about it with other people as if he couldn't talk about it on an open telephone line, or told someone else it was hush, hush, or QT."

If Libby did not provide accurate answers to the FBI or the grand jury, his attorneys said, it's only because he was dealing with national security matters and therefore forgot how and when he found out about Plame Wilson. He did not intentionally lie, Libby's attorneys said during the court hearing.

But Fitzgerald said the evidence he has collected speaks for itself and proves Libby knowingly lied about his involvement in the leak.

On July 7, 2003, Libby "had a lunch where he imparted that information in what was described as a weird situation," Fitzgerald said at the hearing. "He had a private meeting with a reporter outside the White House with this meeting. He was quoted in a very rare interview on a Saturday, on the record, in an interview with Time magazine - a very weird circumstance. There are a lot of markers I won't get into that show this was a very important focus, the Wilson controversy, from July 7 to 14 because it was a direct attack on the credibility of the administration, whether accurate or not, and upon the vice president, and people were attacking Mr. Libby. So it was a focus."

Additionally, Fitzgerald said that during Libby's trial, he would argue that because Libby tiptoed around Washington when meeting with reporters, Fleischer, and others to discuss Plame Wilson's CIA work, he must have known that her status was classified.

"We will argue that [Libby] knew or should have known it was classified and that he was being investigated for disclosing classified information," Fitzgerald told Judge Walton. "We will argue that he committed the crime of lying."

Ambassador Wilson emerged in February 2003 as a vocal critic of the administration's pre-war Iraq intelligence. He accused the White House of ignoring his March 2002 oral report to the CIA, in which he told a CIA analyst that there was no truth to intelligence reports about Iraq's attempts to acquire uranium from Niger. It would later be revealed that the intelligence documents on Niger were forgeries.

Despite Wilson's findings, and warnings from the State Department and the CIA that the Niger intelligence was suspect, President Bush cited Iraq's attempt to purchase uranium in his January 2003 State of the Union address, which helped convince the public and Congress to back the war. Wilson exposed the administration's flawed Niger intelligence in a July 6, 2003, New York Times op-ed column.

High-ranking White House officials - including Libby and Deputy White House Chief of Staff Karl Rove, according to several reporters who testified before the grand jury - revealed Plame Wilson's identity. Wilson has charged that the leak was in retaliation for his criticism of the Bush administration.

Truthout reported that Rove was indicted last May and later struck a plea agreement with the prosecutor based on conversations with high-ranking government sources. Rove's attorney, Robert Luskin, vehemently denied the report and, in June 2006, said he had received a letter from Fitzgerald exonerating Rove. However, Luskin has not publicly released a copy of the letter he claims Fitzgerald sent him nearly nine months ago. Fitzgerald has not publicly confirmed or denied Luskin's assertions regarding Rove's legal status.

Investigators questioned Libby and numerous other White House officials about their role in the leak and whether they were involved in a campaign to discredit Wilson. Libby told the FBI in October and November 2003 that he first learned from NBC News correspondent Tim Russert that Plame Wilson worked at the CIA and that she was Ambassador Wilson's wife.

Russert vehemently denied Libby's account, and it has since been reported that Libby was actually a source for at least two reporters who wrote about Plame Wilson in July 2003.

Jason Leopold is a former Los Angeles bureau chief for Dow Jones Newswire. He has written over 2,000 stories on the California energy crisis and received the Dow Jones Journalist of the Year Award in 2001 for his coverage on the issue as well as a Project Censored award in 2004. Leopold also reported extensively on Enron's downfall and was the first journalist to land an interview with former Enron president Jeffrey Skilling following Enron's bankruptcy filing in December 2001. Leopold has appeared on CNBC and National Public Radio as an expert on energy policy and has also been the keynote speaker at more than two dozen energy industry conferences around the country.

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