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Libby lawyers oppose Cheney notes as evidence

I. Lewis Libby
Former White House aide I. Lewis "Scooter" Libby, who was indicted on perjury and obstruction charges last year in the CIA leak scandal, leaves federal court in Washington, on May 16.Haraz N. Ghanbari / AP file

Attorneys for I. Lewis “Scooter” Libby attacked plans by prosecutors in the CIA leak case to submit a New York Times op-ed containing handwritten notes by Vice President Dick Cheney.

In a court filing late Friday night, Libby’s lawyers argued that their client testified before the grand jury that he did not see this document until it was shown to him by the FBI in November 2003.

The op-ed article by former Ambassador Joseph Wilson, which was published July 6, 2003, argued that the Bush administration “twisted” intelligence “to exaggerate the Iraqi threat” in the run-up to a U.S.-led invasion.

Special Counsel Patrick Fitzgerald has argued in court filings, that the Cheney’s notes on the op-ed article expressed the concern he had about assertions made by Wilson, which concluded that the Bush administration somehow, “twisted” some intelligence about Iraq’s nuclear weapons program.

Those concerns about the merits of Wilson’s findings, after his trip to Niger, included the notation by the Vice President questioning whether Wilson’s wife had “sent him on a junket.” 

Fitzgerald has argued that the op-ed triggered a campaign in the White House to discredit Wilson’s finding which included outing Wilson’s wife, a classified CIA agent, to reporters.

Libby’s attorney’s say the government evidently wants to argue to the jury that “facts that were viewed as important” by the vice president would have been important to Libby too, and that the Cheney’s notes can be used to show what Libby focused on during July 2003.

“These arguments are tantamount to an acknowledgment that the state of mind of witnesses other than Mr. Libby will be important at trial,” Libby’s lawyers write in their 10-page court filing.

Libby’s attorneys also question how Fitzgerald will authenticate the handwritten notes attributed to the Cheney if they do not call him as a witness. 

The defense says they are entitled to obtain additional documents concerning what other government officials might have learned about Wilson’s trip, whether they were involved in the subsequent finger pointing among government agencies that resulted from Wilson’s allegations; how they learned Wilson’s wife, Valerie Plame, worked at the CIA; whether they thought her employment status was classified; and whether they discussed Wilson’s affiliation with the CIA with officials other than Libby.

Libby’s attorneys write, “The jury will not be able to judge the relative importance of Mr. Wilson’s allegations and the peripheral nature of information about his wife if it does not understand the full factual context that Mr. Libby and others confronted.”

Libby’s lawyers acknowledge concerns expressed by Judge Reggie Walton that he would not allow a debate at trial about the legitimacy of the decision to go to war in Iraq.

“Our focus on Mr. Wilson’s accusations does not signal an intention to use this case to reargue the reasons why the United States invaded Iraq,” defense attorneys wrote.

They also acknowledge that given that a jury will made up of Washington, D.C., residents, “such an approach would be a foolish and self-destructive trial strategy.”

Libby’s attorneys argue that their only reason to show what their client and other witnesses were doing in June and July of 2003 in response to Wilson’s charges is for a jury to “understand that Mr. Libby may have been confused or may have misrecollected facts in good faith, and did not act with a specific intent to give false testimony.”  They write that only with such context will the jury appreciate that “Mr. Libby did not need to attack Mr. Wilson personally to rebut his allegations, because the administration had clear factual support for its position that Mr. Wilson’s criticisms were wrong.”

Libby, who was then Cheney’s chief of staff, is charged with perjury, making false statements and obstruction of justice during the leak investigation. The trial is set to begin in January 2007 .