Lawyers Hint at Possible Libby Defense

As chief of staff to the vice president, I. Lewis “Scooter” Libby was immersed in some of the most sensitive and weighty matters affecting the nation.

Now, Libby is seeking to use the importance of his former responsibilities as a mitigating factor as he prepares for a criminal trial in the unmasking of former CIA operative Valerie Plame. Libby contends that any alleged lack of truth-telling was inadvertent, the product of his preoccupation with life-and-death matters of state.

It’s a provocative strategy that some experts say could rub a jury the wrong way by suggesting that he is above the law.

It is unclear whether his lawyers would employ this argument at trial, but they used it in a court filing this week in an attempt to force the government to turn over voluminous notes and other sensitive documents that they said were essential to his defense.

The documents are needed to show the depth of his work responsibilities around the time he was being grilled by investigators, the lawyers say.

Special prosecutor Patrick J. Fitzgerald is opposing the request, saying the information sought, including secret daily presidential intelligence briefings, is irrelevant.

The dispute reflects the intense legal wrangling between Libby’s lawyers and the government team since Vice President Dick Cheney’s top aide was indicted in late October on charges of perjury and obstruction of justice. Other expected battles include plans by his lawyers to subpoena journalists to testify in his case.

On Friday, a conflict in a defense attorney’s schedule prompted a federal judge to set a trial date of Jan. 8, 2007.

Libby was charged in a five-count indictment with making false statements to the FBI and the grand jury about his conversations with reporters in the days and weeks before Plame’s role was revealed in a July 2003 newspaper column by Robert Novak.

Plame is married to Joseph C. Wilson IV, a former ambassador who had written an op-ed piece in the New York Times accusing the Bush administration of twisting prewar intelligence on Iraq. Administration critics say Plame’s CIA work was leaked to the media to discredit Wilson.

It is illegal to knowingly reveal the identity of covert intelligence agents, and Fitzgerald was appointed to investigate who was responsible.

Libby allegedly told the FBI and grand jury that he first learned the identity of Plame from Tim Russert of NBC News. But the government alleges that Libby already had learned that Plame worked for the CIA, and that he had assiduously accumulated information about her and spread it to several reporters and others.

Court documents separately released Friday revealed Libby had denied in his testimony ever mentioning Plame to former White House Press Secretary Ari Fleischer, but Fleischer had testified that Libby had given him that information at a July 2003 lunch.

Through his lawyers, Libby has denied any suggestions that he intentionally lied, and has said that at worst, he was guilty of being confused over the source of his information.

He has set out a two-prong strategy: targeting what the journalists knew and when they knew it, and building a case showing that his job was such that he simply could not remember every pertinent fact that occurred in conversations with journalists months before being queried by investigators.

Besides seeking information from Fitzgerald about interviews he conducted with journalists, his lawyers have signaled that they may subpoena other journalists to see how widely Plame’s identity was known.

Those requests are likely to trigger a battle over the rights of journalists to keep sources confidential and the rights of the accused to a fair trial.

In court papers, the defense is demanding that it be provided with an array of notes and documents from a 10-month period leading up to Libby’s second and final appearance before the grand jury in March 2004. The request includes documents from the administration’s morning intelligence briefing, including the highly classified president’s daily brief.

“These documents will establish that Mr. Libby was immersed throughout the relevant period in urgent and sensitive matters, some literally matters of life and death,” the lawyers said in a court filing dated Tuesday.

“Based in part on the documents, Mr. Libby will show that, in the constant rush of more pressing matters, any errors he made in his FBI interviews or grand jury testimony, months after the conversations, were the result of confusion, mistake or faulty memory, rather than a willful intent to deceive.”

The argument could offer the former vice presidential advisor a plausible explanation in court for his alleged lack of truth-telling. But it could also suggest to a jury that he is self-important and thinks that top government officials somehow have less responsibility to be honest than ordinary citizens.

The argument boils down to “I’m too busy to tell the truth,” said Daniel Richman, a former federal prosecutor who is a professor of criminal law at Fordham University Law School in New York, adding that a jury would probably have trouble with that defense.

“I think the average Joe expects someone brought to the grand jury would focus with real intensity on the questions being asked and the answer to the question,” Richman said. The defense has “an uphill battle,” he added.

William Jeffress, a lawyer for Libby, said after Friday’s hearing that “our point ... was not that Scooter was too busy to take the grand jury testimony seriously,” and that it was unfair to suggest otherwise.

“The point made in the motion is that considering the extremely serious matters Libby was working on and thinking about in 2003, it would not be surprising if, when asked about it three to eight months later, he had imperfect recall of when or with whom he discussed something so relatively inconsequential as Ambassador Wilson’s wife’s employment,” Jeffress said.