A Battle Over "Powerful Evidence" at Libby Trial

As Special Prosecutor Patrick Fitzgerald gets ready to wrap up the government's perjury and obstruction of justice case against former vice presidential staffer I. Lewis "Scooter" Libby, he is fighting to introduce two "powerful" pieces of evidence he says will help convince the jury that Libby deliberately lied to federal investigators about how and when he discovered the identity of covert CIA operative Valerie Plame Wilson and whether he leaked the information to reporters.

Fitzgerald wants the jury to see two articles from the Washington Post, dated October 4 and 12, 2003, that his investigators obtained from Libby's personal files. The articles in question, written by Washington Post reporters Walter Pincus and Mike Allen, are damaging to Libby's defense, Fitzgerald said, because they contain specific passages that Libby had underlined concerning the harm caused by Plame's identity becoming public and the possibility that whoever was responsible for the leak may have violated a federal law.

Fitzgerald has argued that the articles with the underlined passages prove Libby feared he was responsible for the damage to national security the leak caused and therefore concocted a story about learning Plame's identity and work with the CIA from Tim Russert, host of "Meet the Press," in order to save his job.

Plame's name was revealed in a syndicated column by Robert D. Novak on July 14, 2003 - eight days after her husband, Joseph Wilson, accused the administration of twisting intelligence to justify war with Iraq.

It was only during the preparation of his first interview with FBI agent Deborah Bond on October 14, 2003, that Libby found the articles and other documents in his personal files that indicated he was actually told Plame's name and her employment status with the CIA by Cheney - far earlier than the July 2003 timeframe Libby maintains he first learned about her from Russert. Libby's defense is that he was wrapped up with more pressing issues, such as the war in Iraq and national security, and innocently forgot that Cheney had told him about Plame on numerous occasions in June and July 2003.

But Fitzgerald said the articles in question established a motive for Libby to lie to Bond because the substance of the news reports was damning.

Libby's attorneys say the articles will prejudice the jury, and they have filed a motion seeking to block Fitzgerald from introducing them into evidence. The defense argues that the articles contain numerous references to Plame's "clandestine" status, and if introduced into evidence they will lead the jury to believe that Libby is guilty of leaking classified information, a charge Libby is not under indictment for. But Fitzgerald said the articles are relevant to his case in order to establish what Libby's state of mind was when he testified, not to establish the "truth" about whether or not Plame worked in a covert capacity.

"This is a trick, your honor," said defense attorney William Jeffress during a hearing on the issue Thursday, according to a copy of the court transcript. "Let's take the October 4 [2003] article. 'The leak of a CIA operative's name has also exposed the identity of a CIA front company potentially expanding the damage caused by the original disclosure ...' blah, blah, blah. Your honor, that would be so prejudicial to the defense, I don't think we would ever be able to recover. You have the same thing with the [October 12, 2003] article. Again, talks about how she was 'clandestine' blah, blah, blah. I mean, this is a trick, your honor. These articles cannot possibly go into evidence to the jury. No instruction to just not consider them for their truth could possibly overcome the prejudice."

Fitzgerald took issue with Jeffress's characterization, telling Judge Walton, "It's not a trick to offer evidence that goes right to the heart of the issue: Mr. Libby's state of mind."

"[There is] an article [Libby] printed on October 4 [2003], ten days before his FBI interview, that is in his file, indicating that there could be damage" that resulted from the Plame leak, Fitzgerald told Walton. "And I just think it's a trick to stand up there and say there is no motive to lie because all the evidence that shows he had a motive to lie comes from his own file. The jury is entitled to know what was in [Libby's] head and this was in his head and in his file. It's direct proof as what he had in mind when he made up a story that says, you know what, I forgot everything that came from the vice president."

"I think in opening [Libby attorney Theodore] Wells said it is stupid for the government to claim [Libby] would put this on Mr. Russert," Fitzgerald added. "But it's not stupid if what you are looking at is a fear that you may have, whether he did it deliberately or screwed up, but your fear that you may be involved in something that is a big mess in terms of law, in terms of politics, and in terms of getting yourself fired."

If the articles were submitted into evidence, they would back up testimony Bond gave Thursday about her interviews with Libby in October and November 2003. Judge Walton is expected to issue a ruling sometime Monday on whether the articles are admissible.

Bond testified that the story Libby told about learning Plame's CIA status first from Russert and then later discovering through his own handwritten notes that it was Cheney who actually told him about Plame wasn't believable from the outset.

Bond testified that Libby told her he received a call from Cheney on either June 10 or 11, 2003, "alerting him that Washington Post reporter Walter Pincus intended to write an article for the paper scheduled to be published on June 12, 2003," about Wilson's claims that the White House manipulated pre-war Iraq intelligence.

"Mr. Libby told us the conversation with the vice president was in regard to an upcoming article being written ... for the newspaper for June 12, [2003]," Bond said during testimony Thursday. "Mr. Libby told us that during the telephone conversation with the vice president, that the vice president told him that the former ambassador's wife worked in the C.P. division of the CIA. Mr. Libby explained that the C.P. stood for counter-proliferation."

Libby told Bond that he forgot about the conversation he had with Cheney in June 2003, and that when Russert told him about Plame a few weeks later, it was as if he had heard the information about her for the first time.

Bond said Libby explained to her and other agents who were present at the interview how he suddenly triggered his memory.

"It was not until early October 2003 when he was searching through his documents for this investigation that he realized that he had actually learned about the former ambassador's wife working at the CIA [from Cheney] in June 2003."

She added that Libby also told her in a second interview on November 26, 2003, that while aboard Air Force II a week or so before Novak unmasked Plame's identity in his column, Libby and Cheney discussed telling the media that Plame worked for the CIA and was married to Wilson.

"Mr. Libby said that he went to the vice president's cabin and ... there was some discussion of whether or not they should report to the press that Ambassador Wilson's wife worked at the CIA," Bond said.

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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