Attorneys for former vice presidential aide I. Lewis “Scooter” Libby are seeking to limit the testimony of former White House spokesman Ari Fleischer in the CIA leak case, NBC News has learned.
Fleischer, who made a brief appearance at the courthouse on Thursday, is expected to testify as early as Monday that he learned that the wife of Bush administration critic Joseph Wilson worked for the CIA from Libby, a former top aide to Vice President Dick Cheney.
NBC News has also confirmed that White House deputy chief of staff Karl Rove has been subpoenaed to appear as a witness, according to a source familiar with trial.
According to the source, who asked not to be identified due to the sensitivity of the case, the subpoena sent by Libby's lawyers is a "standard action," and it does not mean that Rove will be called to testify. "In fact, it is unlikely," according to the source.
Rove, who has not been charged, has acknowledged having been a source for a July 14, 2003, column by Robert Novak that first disclosed the identity of Valerie Plame Wilson as a CIA officer. The disclosure led to the investigation resulting in Libby's indictment on charges he lied to FBI investigators and obstructed their investigation into the leak.
Special Prosecutor Patrick Fitzgerald says that in early 2004, as his leak investigation was heating up, Fleischer stepped forward with an offer to prosecutors: Promise no prosecution and he would help their case.
Libby's defense attorneys are asking U.S. District Judge Reggie B. Walton to force Fitzgerald to reveal what Fleischer promised him. Fitzgerald told Walton that no promises were made.
Libby's attorneys argue that the jury should consider whether Fleischer's immunity deal gives him a reason to provide testimony that "will curry favor with the government."
Lead defense attorney Ted Wells argues Fleischer is in a "different position than any other witness in this case," and "may have issues where his credibility should be questioned because he has an arrangement."
A motive to lie?
Fitzgerald said in court on Tuesday that Fleischer had been informed by Libby about Plame's identity as the wife of Joseph Wilson, the former diplomat whose criticism of pre-war intelligence about Iraq set off the case.
Fleischer, according to Fitzgerald, later discussed Plame with reporters including White House correspondent David Gregory of NBC News.
Fitzgerald said that Fleischer became concerned after reading a newspaper article indicating there was a criminal investigation into the September 2003 leak of Plame's name. To Fleischer, "it was one of those moments when your heart goes in your throat, and you think, I could be in very big trouble here," Fitzgerald told the court.
The Washington Post article asserted that disclosing the identity of a covert CIA employee was a crime.
Defense attorneys argue in the court filing, "Because Mr. Fleischer feared criminal prosecution in light of the article in question, this argument goes, Mr. Libby must have had a similar fear, and therefore motive to lie." They argue, "this court should not allow the government to prejudice Mr. Libby by using testimony concerning Mr. Fleischer's state of mind for this impermissible purpose."
‘A pig in a poke’
Fitzgerald is expected to respond to Libby's attorneys in a separate court filing. The matter may delay Fleischer from taking the witness stand until Walton issues a ruling on how much the jury can hear about Fleischer's agreement with the government.
Fitzgerald told the court this week that he had reservations about offering Fleischer a deal.
"I didn't want to give him immunity. I did so reluctantly," Fitzgerald said. "I was buying a pig in a poke."
Once the deal was struck in February 2004, Fleischer revealed that he had discussed Plame with reporters in July 2003, days before leaving his job at the White House. He also said he learned about Plame from Libby.
Fleischer’s testimony is significant because he says he talked to Libby about Plame days before Libby told the FBI he was surprised to learn it from a reporter.
Gambling on leakers
Libby’s attorneys want details about Fleischer’s agreement to cast the defendant as someone who’s pointing fingers to protect himself. Fitzgerald says he doesn’t have to disclose his conversations with Fleischer because they weren’t about specific testimony.
“It wasn’t as if someone said, ‘Here’s what I can give you about Mr. Libby. Is that good enough? You know, will that give us immunity?’ “ Fitzgerald said. “That wasn’t it.”
Fitzgerald’s gamble that Fleischer can break open his case is the second such arrangement that prosecutors are known to have made with leakers.
At the onset of the investigation, former Deputy Secretary of State Richard Armitage said he told authorities that he was the source behind columnist Robert Novak’s story that revealed Plame’s identity and triggered the probe.
Fitzgerald has not discussed the arrangement with Armitage but said Thursday that he granted immunity to Fleischer believing only that he had “relevant information.”
The deal Fitzgerald made was unusual enough that Libby’s defense lawyers questioned whether it could be true. They suggested that Fitzgerald got a secret summary of Fleischer’s testimony — a deal they want to discuss with jurors when Fleischer takes the stand against Libby on Monday.
Defense attorneys said they will ask U.S. District Judge Reggie B. Walton to force Fitzgerald to reveal what Fleischer promised him. Fitzgerald told Walton that no promises were made.
“We got no specifics,” he said.