Libby Suffers Setback In Document Request

By R. Jeffrey Smith
Washington Post Staff Writer
Saturday, June 3, 2006

A federal judge yesterday rejected a bid by I. Lewis "Scooter" Libby to see a range of classified government documents that he asserted are needed to prepare his legal defense against charges of obstruction of justice and lying to government investigators.

U.S. District Judge Reggie B. Walton's decision amounted to a setback for Libby's defense strategy.

Libby, the former chief of staff to Vice President Cheney, was indicted last October for allegedly lying in statements about his conversations with three journalists regarding former ambassador Joseph C. Wilson IV and Wilson's wife, CIA officer Valerie Plame.

In the summer of 2003, Wilson publicly accused the Bush administration of twisting intelligence about Iraq's nuclear ambitions to justify the invasion. Wilson's op-ed column set off a White House response that ultimately resulted in the disclosure of Plame's identity in the media.

Walton concluded that Libby is entitled to see documents directly related to his efforts at the White House to rebut what Wilson had written about the intelligence.

But Libby cannot have other information about a CIA-sponsored trip Wilson had made to Niger in 2002 to determine whether Iraq was seeking nuclear weapons material there, Walton said. Nor is Libby entitled to know what other government officials may have known at the time or told others about the CIA employment of Wilson's wife, Walton wrote.

The decision came after a lengthy debate in court filings between Libby's legal team and Special Counsel Patrick J. Fitzgerald, who oversees the probe into how Plame's name became public in a July 2003 column by Robert D. Novak. Plame's employment by the CIA was classified, making the disclosure a potential criminal violation.

Fitzgerald has suggested that those in the administration who disclosed Plame's name may have been trying to undermine Wilson's criticisms by saying that he was sent on the Niger trip because of nepotism that stemmed from his wife's employment. Wilson's trip cast doubt on reports that Iraq was attempting to acquire nuclear weapons material in Niger.

Libby has said that there was no White House effort to take revenge on Wilson, and that he was involved only in legitimate efforts to rebut Wilson's assertions about the Iraq-related intelligence and how it was handled. Libby has attributed any misstatements he had made about his conversations with journalists to forgetfulness caused by the press of official business.

Fitzgerald has depicted Cheney as having been at the center of concerted efforts to rebut Wilson. He asserted that Cheney had raised the issue of Plame's connections to the Niger trip in conversations with Libby. Fitzgerald has also said that the vice president's intense focus on the subject undermines Libby's contentions that other matters had preoccupied him.

Walton ordered Fitzgerald to give Libby's lawyers any documents he possesses that support the defense's assertions about rebutting Wilson, as well as any documents that may "tend to show" that Libby's account of his conversations with journalists about Wilson and Plame "did or did not occur as alleged in the indictment."

Walton said that Libby is also entitled to see documents that could be used to question the credibility or recollection of government witnesses.

But Walton said Libby's overall request for documents was "largely without merit" because Wilson's trip and his criticisms of the administration are of peripheral significance to the case. He reiterated that Libby's trial, expected to begin next year, will not be "a forum for debating the accuracy of Ambassador Wilson's statements, the propriety of the Iraq war or related matters leading up to the war."

Walton said, for example, that Libby's request to review documents about what other government officials knew about Plame "is completely immaterial unless that information was shared" with Libby or the journalists that the two sides say were involved in conversations with him. They are Matthew Cooper of Time magazine, Tim Russert of NBC News and Judith Miller of the New York Times.

Walton also said that he had reviewed in his chambers the CIA's original request to the Justice Department for an investigation into the leak of Plame's name -- the documentation of which Libby had sought access to -- and determined that it is "simply not material to the preparation of the defendant's defense."

In a separate order, Walton accepted a plan by the prosecutor and the government to provide Libby with a classified account of Plame's employment history and a document discussing the "potential damage (if any) caused by the alleged disclosure" of Plame's name.

Those submissions evidently fall short of what Libby's attorneys had initially sought.

William Jeffress Jr. and Theodore V. Wells Jr., Libby's lead attorneys, declined to comment on the decision. Fitzgerald's office also declined to comment.

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