The federal district judge overseeing the CIA leak case against I. Lewis “Scooter” Libby will hold a pre-trial status hearing Monday. Libby, Vice President Dick Cheney’s former chief of staff, is facing five counts of obstruction of justice, false statements and perjury in the investigation of who leaked CIA employee Valerie Plame’s name to the media.
Libby is alleged to have lied to a grand jury and to F.B.I. agents about his conversations with journalists concerning Plame. In his arraignment, Libby pleaded "not guilty" on all charges.
Judge Reggie Walton wants to discuss four issues:
1) The status of discovery.
2) Whether additional motions (other than motions already filed in other preliminary hearings) will be filed.
3) Whether the government will be asserting any claims of executive privilege.
4) Whether the parties believe it is necessary to issue early returnable trial subpoenas to resolve anticipated claims of testimonial privilege.
In each of the prior status hearings there has been a constant drip of clues to Libby's defense strategy and which players will likely be called as witnesses.
Judge Walton, as he has done in previous hearings, is likely to ponder whether Special Counsel Patrick Fitzgerald's investigation is actually nearing conclusion. Because Fitzgerald has indicated that the investigation is ongoing, the judge has allowed the Special Counsel to withhold certain documents dealing with President George W. Bush’s deputy chief of staff, Karl Rove, which Libby's attorneys contend are crucial to their preparing a defense.
At least two current defense strategies have come to light so far:
1) Libby simply forgot: Given the hectic nature of his job as the vice president's chief of staff, Libby's lawyers argue, it's understandable that their client might have failed to remember "snippets of conversation" he felt were unimportant.
2) Or, it might just be that the reporters who claim they talked to Libby about Plame are themselves confused. Judge Walton ordered Time Magazine to turn over documents, notes and drafts of articles for Libby to use in his defense.
The reason that Time must turn over some documents is, according to the Walton, "a slight alteration between the several drafts of the articles" Time reporter Matt Cooper wrote about his conversations with Libby and the reporter's first-person account of his testimony before a federal grand jury.
Fitzgerald is expected to call a number of former and current government officials -- including Vice President Cheney and former White House Press Secretary Ari Fleischer -- who allegedly had conversations with Libby about Plame's CIA status in the weeks before her identity was published in an article by reporter Bob Novak.
The backdrop to the case is that Plame’s husband, former Ambassador Joseph Wilson, had gone to Niger in 2002 on assignment from the C.I.A. to investigate reports that Iraq had obtained uranium there to build a nuclear bomb. In July 2003, after the United States had already invaded Iraq, Wilson wrote an editorial in The New York Times doubting that Iraq had obtained uranium from Niger. He went on to suggest that the White House had misled the American public regarding the uranium evidence. Critics of the Bush Administration claim that the disclosure of Plame’s identity as a CIA employee was meant as retaliation for her husband’s editorial.
Other witnesses likely to be called by the prosecution include former New York Times reporter Judith Miller and Cooper -- both of whom say they were told of Plame's CIA status by Libby -- as well as NBC's Tim Russert. (NBC is a parent company of MSNBC.com.)
Libby testified before the grand jury that it was Russert who first told him Plame worked for the CIA. Russert denies that claim.
Legal Times magazine, in its analysis this week, writes, "although it's common for perjury defendants to blame a faulty memory for any misstatements, that strategy is far from a sure thing. It's especially risky in a major political-corruption case, where there are dozens of witnesses ready to counter that claim."
The legal journal reached back in scandal history to find that, "during the Watergate scandal, President Richard Nixon advised aides to say "I don't remember" when they testified before the Senate Watergate Committee. Subsequently, John Mitchell, Nixon's attorney general, H.R. Haldeman, his chief of staff, and John Erlichman, a policy adviser, all were convicted of perjury."
Libby’s trial is currently scheduled to start in January of 2007.
Joel Seidman is an NBC producer, based in Washington, DC