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Special Counsel in Plame Case Invalid, Libby Contends

By Carol D. Leonnig
Washington Post Staff Writer
Friday, February 24, 2006

Attorneys for Vice President Cheney's former top aide argued yesterday that a federal court should dismiss all charges against him because a special prosecutor lacked the legal authority to bring the charges.

Lawyers for I. Lewis "Scooter" Libby argued that Special Counsel Patrick J. Fitzgerald was improperly appointed by the Justice Department instead of the president to investigate the leak of CIA operative Valerie Plame's identity. That means his work and the charges of perjury, making false statements and obstructing justice brought against Libby in October are invalid, they said in court papers filed yesterday.

Other documents released with their filings show that by August 2004, eight months after beginning his investigation, Fitzgerald had amassed a large amount of evidence suggesting that Libby was lying to investigators. Libby's accounts of conversations with administration officials and reporters about Plame conflicted with others offered by virtually every administration official and reporter questioned by Fitzgerald's investigators.

Also yesterday, Fitzgerald asked U.S. District Court Judge Reggie B. Walton for permission to explain a "factual matter" in a sealed filing that concerns his ongoing grand jury investigation and the reasons Fitzgerald believes he cannot release some of the documents Libby's defense lawyers are seeking.

Since Libby's October indictment, Fitzgerald has continued investigating whether White House Deputy Chief of Staff Karl Rove also made false statements, according to sources close to Rove. In November, Fitzgerald also began probing why a Bush administration official who had previously testified in the investigation notified him only that month that he had provided information about Plame to Washington Post Assistant Managing Editor Bob Woodward in June 2003.

Fitzgerald was appointed to investigate whether administration officials knowingly disclosed Plame's CIA role to the media in July 2003 in an effort to discredit her husband, former ambassador Joseph C. Wilson IV, an administration critic. Then-Attorney General John D. Ashcroft recused himself from the investigation because of his close ties to the White House, and Deputy Attorney General James B. Comey Jr. selected Fitzgerald as a special counsel and gave him broad powers to operate separately from the Justice Department.

Several legal experts said yesterday that the Libby defense team was making a valiant and appropriate effort to defend its client, but said they doubted that the central argument for dismissing the charges would gain traction with the court.

"I think it's a nice try, but I don't give it much chance of success," said Scott Fredericksen, an associate independent counsel during the Reagan administration who helped investigate scandals at the Department of Housing and Urban Development.

Experts said the Libby defense claim is similar to a challenge the Supreme Court rejected by a vote of 7-1 in 1988. In that case, Morrison v. Olson , the Justice Department sought to quash subpoenas of its officials by an independent counsel. They argued that the law that allowed the appointment of independent counsels violated the president's authority under the Constitution and gave such independent investigators inappropriately broad powers.

The regulations written by the Justice Department to allow for the appointment of a special counsel such as Fitzgerald were adopted after the 1992 expiration of a separate law that authorized a judicial panel to appoint independent counsels. The agency decided the regulations were necessary because it was likely there would be times when the federal government's chief law enforcement agency faced conflicts while investigating some matters.

Though the independent counsel worked outside the executive branch, the special counsel regulations were written to work within the executive branch, legal experts said, and the attorney general has authority to deputize someone to prosecute the nation's laws.

"The regulations that created the special counsel are safe from attack," Fredericksen said.

In a previously sealed affidavit released yesterday, Fitzgerald gave a progress report to a federal judge in August 2004 on his investigation and explained why he considered it crucial that reporters be required to testify about their conversations with administration officials, in particular Libby.

Fitzgerald said there was "substantial reason to question" Libby's statements to investigators that he first learned that Plame worked at the CIA in a July 2003 telephone conversation with NBC reporter Tim Russert, and passed on that information to former New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper. Fitzgerald said investigators had found that Libby spoke with seven administration officials about Plame's CIA employment prior to the date of Libby's call to Russert and that Russert said he never spoke with Libby about Plame.

"Libby's account of conversations has been largely inconsistent with every other material witness to date," Fitzgerald wrote.

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