WASHINGTON — In what is stacking up to be one of the most decisive pre-trial hearings in the CIA leak case against I. Lewis "Scooter" Libby, the parties involved will face off Wednesday to argue which -- if any -- classified documents Libby will be allowed to use in his defense against charges of perjury and obstruction of justice.
Libby's legal gambit -- threatening to reveal sensitive national security details when the trial begins in January -- has the potential to derail the proceedings.
Attorneys for Vice President Cheney's former top aide and for special counsel Patrick Fitzgerald will meet before Judge Reggie Walton on Wednesday in the first of several closed hearings dealing with classified documents. Judge Walton will decide the use, relevance or admissibility of the classified information.
Libby has said he will take the stand and tell jurors he never lied to investigators or to a grand jury in the leak case. Libby faces five counts of perjury, making false statements and obstruction of justice.
Leveraging classified information
Fitzgerald wants to limit the use of secret documents -- believing that extensive use of classified materials at trial may jeopardize national security and sink his case.
It is a legal tactic called "graymail" — when a defendant threatens to reveal classified information during a trial in hopes of forcing the government to drop criminal charges. Fitzgerald may propose allowing only a redacted version of a classified document as a substitution for the original, having deleted only non-relevant classified information.
The special counsel, in a prelude to Wednesday's legal battle, said in a court filing Libby's notes may be admitted. "As a general rule, entries in defendant's notes may often qualify as present sense impressions," Fitzgerald wrote. He wrote, however, that the Presidential Daily Briefs (PDPs) should not be allowed to be used at trial. "There is no doubt that they are compilations of information received from multiple sources, some of whom are outside the United States government, and may even be trying to deceive the government," the prosecutor opines.
'Family jewels' of government
But in order to make his case to a jury, Libby argues that he must rely on the daily morning briefings he and Cheney received from the CIA -- briefings which are classified. Those briefings, and the so-called Terrorist Threat Matrix, other classified information and his own notes, Libby says, are vitally needed to convince jurors that he had much more important things on his plate during a crucial time period in the summer of 2003.
Libby also wants to say that he did not remember his discussions with three reporters about Valerie Plame Wilson, the wife of former Amb. Joseph Wilson. Plame was a CIA officer at the time.
In past court filings, Fitzgerald quoted Cheney as describing those morning briefings as the "family jewels" of government. "The defendant's effort to make history ... is a transparent effort at 'graymail'," Fitzgerald said, referring to past attempts by government officials charged with wrongdoing to derail their prosecutions by trying to expose national security secrets.
Dismissal of case
Walton addressed the issue head-on last week, saying if Fitzgerald feels that admitting certain classified documents at the upcoming trial can threaten national security, he can then move to dismiss the charges against Libby.
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The judge wrote, "if the government is still not satisfied that the classified information is adequately protected at the conclusion of these hearings, the government has the power to preclude entirely the introduction at trial of the classified information. While invocation of this option may require dismissal of this case."
Libby's attorney's will argue this week that, "Mr. Libby must be able to discuss classified information to give the jury an accurate picture of his state of mind during the relevant time period and to show the jury that any errors he made in his statements and testimony were the product of confusion, mistake and faulty memory rather than deliberate misrepresentations."
FBI agents interviewed Libby nearly three-years ago, when they were called in to investigate claims that someone in the White House leaked Plame's identity to the media that summer in retaliation against Wilson, who wrote in a July 6, 2003 New York Times op-ed, that the administration "twisted" the facts about their claims that Iraq was in hot pursuit of Niger's fissile yellowcake. Those claims embarrassed the administration when they were included in the infamous "16 words" in the President's State of the Union address.
No charges for leaking ID
When questioned about his knowledge of the leak, Libby allegedly lied about how and when he learned of Plame's CIA status, and with whom he discussed the classified information. Given the very frenetic nature of his job as the vice president's chief of staff, Libby's lawyers have said, it's understandable that their client might have misremembered, "snippets of conversation" which Libby felt were simply not important.
But, even if he did talk to reporters about Plame, attorneys for Libby argue, he had no motive to lie about it later because he didn't know her status was classified and therefore was unaware he had done anything wrong.
Fitzgerald did not charge anyone with violating the law that makes it a crime to knowingly disclose the identity of a covert CIA agent.
Former Deputy Secretary of State Richard Armitage acknowledged recently that he revealed Plame's job to syndicated columnist Robert Novak and Washington Post reporter Bob Woodward but said it was inadvertent.
Fitzgerald has said in court filings that the Plame leak from Libby was orchestrated specifically to undermine the credibility of Wilson's public pronouncements -- which Fitzgerald says consumed the vice president's office for several weeks in the summer of 2003 -- after Wilson's op-ed was published.
The special counsel revealed in court filings Cheney's handwritten notes at the margins, and underscores within, a newspaper clipping of Wilson's article, which the prosecutor says show the harsh reaction the Vice President had to Wilson's assertions in it about U.S. intelligence on Iraq's weapons of mass destruction.
The notes by Cheney seemingly question the CIA's motivation for sending Wilson on the fact finding trip to Niger. Cheney writes, "Have they done this = sort of thing before? Send an Ambr (ambassador) to answer a question? Do we ordinarily send people out pro bono to work for us? Or did his wife send him on a junket?"
Iraq war debate
Libby's lawyers also want to use classified records related to Wilson's trip to Niger, the use of which Judge Walton has openly questioned in court. Walton has said he would not permit his court to become a forum for debating the accuracy of Wilson's statements in a New York Times Op-Ed, or the propriety of the Iraq war and matters leading up to the war. The judge wrote, "at best, these events have merely an abstract relationship to the charged offenses."
But Libby attorney's say that the documents generated by the CIA about the Niger trip and faxed to Libby at the White House were used when he "was talking to a reporter...about the Wilson trip."
Fitzgerald seems to agree in part. In his filing this week, the special counsel writes, "documents related to the Wilson controversy may, on a document-by-document basis, be admitted." But he says, they must satisfy certain criteria on hearsay, or be admitted for a limited purpose.
Libby's trial is still four months away, jury selection is scheduled to begin on January 17th.
Joel Seidman is an NBC News producer based in Washington.
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