Thursday, April 6, 2006

Proving Libby's Intent

Special Prosecutor Patrick Fitzgerald's filing in response to I. Lewis Libby's most recent discovery request contains information indicating that the Vice President authorized Libby to reveal information from a classified government report to New York Times reporter Judith Miller in July 2003.  The revelation that the President had the Vice President direct a member of his staff to meet with a reporter to disclose information previously classified (the President apparently can declassify information and permit its disclosure) has garnered significant attention.  What that information also does is show Fitzgerald's trial strategy to counter Libby's defense that disclosure of Valerie Plame's identity was so unimportant that he was simply mistaken when he spoke with the FBI and testified before the grand jury about his involvement in the disclosure of her CIA position.  The intent defense is certainly a key aspect of the "honest-but-overworked-civil-servant" strategy. 

Fitzgerald's response (available below) shows how his office intends to establish intent by focusing on Libby's unique role in leaking the information to Miller and other reporters, and that he worked assiduously to have the White House support him in denying that he had disclosed Plame's identity.  The prosecutors are disputing the need for certain documents requested by Libby, so they discuss how they are irrelevant to the case.  The filing notes that Libby substituted for the Vice President's communications director in meeting with Miller in July 2003, and that the President's authorization to disclose previously classified material to a reporter was "unique."  After the controversy over the Plame disclosure erupted, Libby wrote out a request to White House press secretary Scott McClellan to defend him by stating that Libby, along with Deputy Chief of Staff Karl Rove, was not a source for the column by Robert Novak that first disclosed Plame's CIA connection.  Shortly thereafter, Libby's first FBI interview occurred, and the Special Counsel's filing discusses its theory of proving Libby's intent to deceive and commit perjury:

Thus, as defendant approached his first FBI interview he knew that the White House had publicly staked its credibility on there being no White House involvement in the leaking of information about Ms. Wilson and that, at defendant’s specific request through the Vice President, the White House had publicly proclaimed that defendant was "not involved in this." The President had vowed to fire anyone involved in leaking classified information. In that context, defendant proceeded to tell the FBI that he had merely passed information from one reporter (Russert) to other reporters while disclaiming any knowledge of whether the information he passed was true, and certainly unaware that he knew this classified information from government channels. Once that die was cast, defendant repeated the story in a subsequent interview and during two grand jury appearances.

The prosecution will likely have to highlight the role of the President and Vice President in using Libby to respond to reports questioning pre-war WMD claims, which means there is even a chance they could be called as witnesses.  The filing also notes that the government does not intend to call Rove, who worked closely with Libby.  As the details of the case continue to dribble out, the outlines of the government case are coming clear, and the potential problems it could cause for the White House. (ph)

Download response_to_third_discovery_motion_us_v_libby.pdf

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