Disclosure Could Hurt Libby Defense

The disclosure that a Bush administration effort to rebut an Iraq war critic included the president and vice president could undercut a key defense that I. Lewis “Scooter” Libby has raised in defending perjury charges in the CIA leak case, some legal experts and defense lawyers said Friday.

Lawyers for the former White House aide, who is charged with lying to the FBI and a grand jury about whether he leaked the identity of a CIA operative to reporters, have argued that any misstatements he made were inadvertent and resulted from his immersion in more important matters than the agent’s identity.

But court papers filed late Wednesday by Special Prosecutor Patrick J. Fitzgerald showed that the administration considered the matter anything but unimportant.

The papers suggest that President Bush and Vice President Dick Cheney were directly involved in trying to discredit the assertions of envoy Joseph C. Wilson IV, a critic of the war. His wife, Valerie Plame, was the covert agent whose identity was leaked.

According to the new documents, Libby told a federal grand jury that Cheney instructed Libby, then his chief of staff, to talk with reporters about intelligence that refuted Wilson’s claims that the administration was twisting intelligence to justify the war in Iraq. Cheney cited Bush as authorizing the dissemination of classified information to a reporter, according to Libby’s testimony.

Those disclosures could make it harder for Libby to argue that he paid little attention to Plame.

“It cuts toward showing the salience of the Plame-Wilson relationship in his mind and the unlikelihood that it would have slipped his mind when he talked to the FBI,” said Daniel Richman, a former federal prosecutor who is a professor at Fordham University School of Law.

The papers show that “Libby’s mind was quite wellfocused on giving out information about Wilson,” Richman said. “This was not something that was haphazard.”

Some defense lawyers -- and people close to Libby -- cautioned that the disclosures cut both ways. They said Bush and Cheney’s involvement proved a point useful to Libby: He was following the marching orders given by his superiors, who were legitimately attempting to rebut what many considered to be wrongheaded claims from Wilson.

Wilson had written a July 6, 2003, New York Times op-ed piece that challenged the administration’s contention that Iraq was seeking nuclear material in Africa. He based his assertion on a mission to Niger he had undertaken for the CIA to investigate such claims. He concluded there was little evidence to support it.

But the administration’s claim was generally supported in an intelligence report Libby says Cheney told him to leak at Bush’s instruction. They also note that Libby volunteered much of the information about Bush and Cheney during his grand jury testimony. They say that is inconsistent with a prosecution theory -- that Libby lied to investigators to cover up the existence of a White House conspiracy to disclose Plame’s identity.

“If he [Libby] is trying to protect the conspiracy, why does he voluntarily disclose information about the president and the vice president?” asked a lawyer who has represented someone in the case and who requested anonymity because of the pending charges. “Does that sound like a conspiracy to you? He gives up the boss and the under-boss!”

Libby is accused of perjury and obstruction of justice, and faces a trial in January. The government alleges that he spread information about Plame’s CIA employment to reporters in the week after publication of Wilson’s article -- and then lied to investigators about his conversations with the reporters and how he obtained the information about Plame.

In one case, Libby told FBI agents that he first learned Plame’s name from Tim Russert of NBC News in a conversation about July 10, 2003. In fact, the government alleges, days before, Libby had assiduously sought out information about Plame and learned her identity from three different government sources, including Cheney.

Moreover, three days before Libby spoke with Russert, Libby told then-White House Press Secretary Ari Fleischer that Wilson’s wife worked at the CIA. Fleischer is expected to be called by the government as a witness at Libby’s trial.

Libby’s lawyers have conceded in court that Libby might have made misstatements to investigators, but argued that they were inadvertent, reflecting “his immersion in other, more significant matters, rather than deliberate lies,” according to a Jan. 31 court filing.

Around the time of the leaks, Libby and other government officials “viewed [Plame’s] identity as at most a peripheral issue,” his lawyers said in a separate motion filed last month. They said administration officials had been concerned with publicly disputing Wilson’s war criticism, “not with where his wife worked.”

In the court filing, Fitzgerald said the president had been unaware of the role that Libby played in disclosing Plame’s CIA employment. But Cheney is depicted in the filing as actively concerned about Wilson. Wilson’s op-ed article “was viewed in the office of Vice President as a direct attack on the credibility of the vice president (and the president) on a matter of signal importance: the rationale for the war in Iraq,” Fitzgerald wrote.

The filing makes no allegation that Bush or Cheney authorized Libby to disclose information about Plame. But it recounted that after Wilson’s article appeared, Cheney expressed concerns to Libby about “whether Wilson’s trip was legitimate or whether it was in effect a junket set up by Mr. Wilson’s wife.” Fitzgerald has said that Cheney earlier told Libby that Wilson’s wife worked at the CIA.

Thereafter, according to the filing, Cheney personally dispatched Libby to leak portions of the classified intelligence report to New York Times reporter Judith Miller. Later, according to the filing, he was “specifically instructed” by Cheney to speak to other reporters regarding the intelligence information as well as Wilson.

Some lawyers speculate that Libby’s lawyers might call Bush or Cheney as witnesses to bolster the case that the aide was just following orders. But that could be a risky gambit because there is no evidence that either man authorized Libby to spread information about Plame or to lie.

Libby might also be sensitive to the fact that, if he should be convicted, Bush might ultimately hold the keys to his jail cell, said a lawyer involved in the Plame investigation who declined comment because of the continuing probe.

“I don’t think Libby is going to do anything to jeopardize what may be one of his best defenses -- the pardon authority in the U.S. Constitution,” the lawyer said.