February 10, 2006
The Strange Assertion of Fitzgerald Regarding Libby's Grand Jury Testimony
A National Journal story (here) has sparked widespread interest in its report on a letter sent by Special Counsel Patrick Fitzgerald to the lawyers for I. Lewis Libby that states, "Mr. Libby testified in the grand jury that he had contact with reporters in which he disclosed the content of the National Intelligence Estimate ("NIE") … in the course of his interaction with reporters in June and July 2003 .… We also note that it is our understanding that Mr. Libby testified that he was authorized to disclose information about the NIE to the press by his superiors." Speculation abounds regarding who "authorized" Libby to disclose the information, if that was the case at the time of the disclosure of Valerie Plame's CIA status. What I find interesting, and a bit confusing, is the second quoted sentence, in which Fitzgerald states that "it is our understanding that Mr. Libby testified" about the authorization. Isn't that a strange choice of words from the prosecutor's office that conducted the entire grand jury investigation and has access to all of the witness testimony and FBI reports of interviews? It should be more than their "understanding" about his testimony, they should know whether or not Libby testified as such or not. It may be that the Special Counsel is trying to bolster the position that the defense requests for other classified information are irrelevant to the case if Libby testified, or at least implied, that he was authorized to leak information about Plame. In other news reports (AP story here), one of Libby's attorney's asserted that he would not try to shift the blame to superiors for authorizing any leaks of classified information. That statement does not deny the assertion in Fitzgerald's letter about the grand jury testimony, which under Federal Rule of Criminal Procedure 16(a)(1)(A) has to be produced to the defense upon request.
Fitzgerald may be hinting at the government's line of attack to neutralize the "honest-but-overworked-public-servant" defense that Libby's team has advanced to this point. If Libby did try to justify the disclosures to the media about Plame and related items in his grand jury testimony or an FBI interview, then his claim that he did not recall having disclosed the information would be weakened. Because it is likely that Libby will have to testify at trial, the government could try to impeach him by asserting that a defense that he was unaware of any improper disclosure is merely the "defense du jour" and that he had a different approach in the grand jury to justify his actions. Libby's various statements in the investigation may hamstring the defense to a degree, and it shows how dangerous it can be to have a client testify before the grand jury or submit to a full-scale interview with investigators. Yet, a person in Libby's former position could hardly refuse to cooperate or assert the Fifth Amendment and have any realistic hope of keeping his job. (ph)
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