February 1, 2006
The Outlines of Libby's Defense
As noted in this earlier post (here), the most likely defense for I. Lewis Libby on the charges of perjury and false statements is the "Dedicated-but-Overworked-Public Servant" position, that a person at his high level dealt with so many issues that a couple telephone calls to (or from) reporters about a bit player in a Washington D.C. sideshow is hardly worth the attention of the chief of staff to the Vice President -- not to put too fine a gloss on things. In a recent discovery request, Libby's lawyers gave a preview of his defense in requesting documents from the government, many of them secret, regarding the types of national security issues he was dealing with and whether the disclosure of Valerie Plame's position with the CIA caused any damage to national security. According to his brief filed with the U.S. District Court, "These documents are material to establishing that any misstatements he may have made were the result of confusion, mistake and faulty memory . . . rather than deliberate lies." Libby is also seeking information from the special counsel's office regarding contacts with other journalists to determine whether others leaked Plame's identity.
It seems that the defense is taking a two-step approach, first acknowledging that perhaps Libby could have disclosed her identity, albeit inadvertently, and then that any revelation was so insignificant that he would not have recalled it when speaking to the FBI or testifying before the grand jury. This is similar to the defense offered by Frank Quattrone, the former Credit Suisse First Boston investment banker, to obstruction charges based on his forwarding an e-mail urging other bankers to cleanse their files when he was aware of a pending SEC investigation. In Quattrone's case, the jury found him guilty, although his conviction has been on appeal before the Second Circuit for nearly a year now. For Libby, acknowledging that he spoke with reporters about Plame does not draw him into a "he said, he said" fight with the government's witnesses. At the same time, his credibility will be on the line, and he will almost have to testify to establish his intent (or lack thereof) to rebut the government's case. With the request for secret documents now before the court, the provisions of the Classified Information Procedures Act kick in, which will slow the pre-trial discovery phase, perhaps significantly. A Washington Post article (here) discusses the latest requests for information by Libby.
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