Thursday, April 13, 2006
Discovery fights are often interesting more for what they reveal about the theory of prosecution and possible defenses than the issues of what documents must be disclosed. The prosecution of I. Lewis Libby has triggered a series of tit-for-tat responses between the two sides that seem to grow more interesting with each round. The last filing by Special Counsel Patrick Fitzgerald discussed the President's authorization of Libby -- through the Vice President -- to disclose a previously classified report (a National Intelligence Estimate, or NIE) to New York Times reporter Judith Miller about WMD to rebut the claims advanced by Joseph Wilson (see earlier post here). Fitzgerald's approach is that this authorization was "unique" and, therefore, Libby's alleged revelation of Valerie Plame's CIA role and connection to Wilson's Niger trip was an item of great importance. Thus, it was unlikely to be forgotten by Libby, negating his faulty memory defense to the perjury and false statement charges.
Libby's response seeking documents from the White House, CIA, and State Department takes up that challenge by raising the specter that the President's involvement in responding to criticism will be an issue at trial, which means that he might be called as a witness. Libby's response memorandum (available below) states:
The government’s brief suggests that only the OVP’s response to Mr. Wilson is relevant to the charges in the indictment. But efforts of Mr. Libby and other officials in the OVP to deflate criticism of the Administration cannot be neatly separated from the actions of officials from other agencies – particularly the CIA, the White House, and the State Department. For example, Mr. Libby worked with the CIA and the NSC to determine how to respond to the controversy over the sixteen words. The indictment itself refers to Mr. Libby’s alleged concerns about how the CIA was responding to the controversy. The indictment also describes actions by officials at the White House, including senior advisor Karl Rove and former press secretary Ari Fleischer, who both spoke to reporters about Mr. Wilson. Now, with the government’s injection of the NIE story into this case, the government has placed even more emphatically at issue the actions of the White House – including President Bush – in responding to media criticism about the 16 words.
I suspect it is a foregone conclusion that Vice President Cheney will be a witness for one side or the other, assuming the case gets that far. The Vice President's interactions with Libby could be crucial to showing the state of Libby's knowledge of Plame's identity and the centrality of his role in responding to media criticism of the Iraq war. Whether President Bush gets dragged into the trial now appears to be a real possibility. Libby's memorandum makes it clear he was not authorized by the President to reveal Plame's identity, but the question whether rebutting Wilson's charges was a significant or minor issue could bring into play a number of issues regarding how the White House was responding in June and July 2003, a very messy topic. (ph)