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Leak story continues to track in US papers, as Boston Globe weighs in

Published: Thursday April 13, 2006

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Lawyers for former vice presidential aide I. Lewis "Scooter" Libby are citing prosecutor Patrick J. Fitzgerald's disclosure last week that President Bush had authorized Libby to leak sensitive Iraqi intelligence as justification for a request to obtain thousands of documents that could shed new light on the administration's use of prewar intelligence, the BOSTON GLOBE will report Friday.

The GLOBE's story doesn't add much to the CIA leak stories already out but continues the flurry of stories that have kept pressure on the Bush Administration in the outing of CIA agent Valerie Plame.

UPDATE: The complete GLOBE story may be read here.


In papers filed late Wednesday night in connection with Libby's perjury indictment, his lawyers accuse Fitzgerald of trying to "have it both ways" by revealing information about the inner workings of the administration while dismissing their own requests for similar information as irrelevant to the charges, which concern only whether Libby lied under oath about his contacts with reporters.

"Far from focusing on what Mr. Libby said and did, the government's disclosure focused on the role of two other players in the matter, President Bush and Vice President [Dick] Cheney, setting off an avalanche of media interest," Libby's lawyer wrote. "In other words, the government has effectively conceded that the case extends far beyond Mr. Libby, but refuses to provide defendant with discovery that reflects that fact."


The filing also sheds further light on Libby's defense strategy in the perjury case. The filing says Libby wants to show that Plame Wilson's identity was viewed as "peripheral" and that exposing her role was not part of the White House's planned response to Joseph C. Wilson IV. Thus, "any misstatements he made" to the grand jury about whether he told reporters about Plame while discussing Niger were "innocent mistakes."

To build that defense, Libby's lawyers say they need access to any documents about the circumstances and results of Wilson's trip to Niger, as well as documents sent, received, or reviewed in the spring and summer of 2003 by potential witnesses in the perjury case.

In particular, they say they want to scrutinize former undersecretary of state Marc Grossman, who testified that he told Libby that Wilson's wife worked at the CIA. Libby testified that he remembered no such conversation. The filing also mentions White House political adviser Karl Rove and former White House press secretary Ari Fleischer.



Below, we provide further examples of why the documents we seek are necessary to prepare to examine three particular witnesses – Mr. Grossman, Mr. Fleischer, and Mr. Rove.

Marc Grossman. As discussed in the introduction, the government plans to call Under Secretary Grossman to testify that he discussed Ms. Wilson’s CIA employment with Mr. Libby – a conversation that Mr. Libby testified in the grand jury he did not recall and which may not have occurred as alleged in the indictment. For example, the indictment asserts that this conversation occurred “[o]n or about June 11 or 12, 2003.” (Indictment, Count One, at ¶ 6.)

Accordingly, Mr. Grossman’s activities in that time period, including any other communications about Ms. Wilson that he may have had, are highly relevant. If, for example, documents indicate that Mr. Grossman confused details of the conversation alleged in the indictment with a conversation with another government official, the defense will use such documents to suggest that his recollection is faulty. In a case where it is already manifest that the memories of many witnesses conflict regarding many different conversations, it is not fair to foreclose the possibility that witnesses other than Mr. Libby may be confused or mistaken about relevant events.

It is unreasonable for the government to contend that because Mr. Grossman’s “testimony will not be offered to prove the truth of the matter asserted,” it is irrelevant whether his statements are substantively true. (Gov’t Br. at 11.) Regardless of the government’s limited offer, the defense has a constitutional right to attempt to demonstrate, if it so chooses, that the substance of Mr. Grossman’s testimony is incorrect, and that all of his testimony should be rejected, including his allegation that he spoke to Mr. Libby about Ms. Wilson on a particular day. The best way to do that would be to show that some part or all of Mr. Grossman’s statements were substantively untrue.

The government responds to the defense contention that bias on the part of Mr. Grossman deserves to be explored by stating that “loyalty to Mr. Armitage or to the State Department” would not cause Mr. Grossman to “invent conversations . . . and testify to them under oath.” (Id. at 14.) Whether the government’s statement on this point is true is for the jury to decide....

Finally, by arguing that Mr. Grossman’s credibility is beyond challenge, the government has once again staked out two hopelessly inconsistent positions. The government asserts that Mr. Libby was motivated to lie under oath to avoid causing “great embarrassment to the administration.” (Id. at 26.) Yet, at the same time, the government also argues that the defense should not have the opportunity to determine whether Mr. Grossman might be motivated to testify in a manner that would prevent embarrassment to the State Department.

Ari Fleischer. The government states that it intends to call former White House press secretary Ari Fleischer to testify about a conversation with Mr. Libby, during which Ms. Wilson’s identity was allegedly discussed.

Again, as with Mr. Grossman, the defense has the right to challenge this allegation and investigate when and how Mr. Fleischer learned of Ms. Wilson’s employment. The government has admitted that “multiple officials in the White House discussed her employment with reporters prior to (and after) July 14,” and the defense has the right to explore whether any of these other officials may also have discussed Ms. Wilson with Mr. Fleischer. (Id. at 30, n.10.) In addition, Mr. Fleischer may have learned about Ms. Wilson’s identity from someone at the State Department or the CIA. The defense therefore needs access to any documents discussing Mr. Wilson, his wife, or his trip to Niger that may be found in the White House or at other agencies. Such documents are needed to investigate properly when and how Mr. Fleischer learned that Ms. Wilson worked for the CIA and when and with whom (other than Mr. Libby) he discussed that fact.

In our moving brief, the defense pointed to an even more specific reason to scrutinize the government’s proffered version of Mr. Fleischer’s testimony. Press accounts suggest that Mr. Fleischer may have learned about Ms. Wilson during his trip to Africa after seeing it in a classified report sent to Mr. Powell on Air Force One and then disclosed this information to reporters. Yet, the government claims that nothing further is required for Mr. Fleischer’s cross-examination than “a copy of the report in question.” (Id. at 12.) In so arguing, the government is once again attempting to dictate which defenses may be raised and which allegations in the indictment may be challenged. Nothing in Rule 16 or the case law of this Circuit suggests that the defense should be limited to cross-examining Mr. Fleischer with only the one report that the government deigns to disclose.


The government’s contention that the report is all the defense needs to cross- examine Mr. Fleischer is unpersuasive. Other documents, totally unrelated to the report, may show that Mr. Fleischer learned about Ms. Wilson from someone other than Mr. Libby. Also, the substance of the report is not as important as what Mr. Fleischer did with or said about the report. That information is likely reflected in correspondence, notes, or e-mails in Mr. Fleischer’s files, not in the report itself. After reviewing such documents, the defense will be better equipped to examine Mr. Fleischer about whether he saw the report on Air Force One, whether he recognized that it contained classified information, and whether he communicated its contents to anyone else.

Karl Rove. Senior White House advisor Karl Rove figures prominently in the government’s indictment. He allegedly spoke both to Mr. Novak and Mr. Libby about Ms. Wilson’s affiliation with the CIA. Accordingly, the government’s statement that it does not presently intend to call Mr. Rove does not diminish his importance in this case. The defense is likely to call Mr. Rove to provide testimony regarding Mr. Libby’s conversations with Mr. Rove concerning reporters’ inquiries about Ms. Wilson, as expressly discussed in the indictment. (Indictment, Count One, at ¶ 21.) Documents from Mr. Rove’s files about the subjects outlined in the indictment are discoverable pursuant to Rule 16 because without them the defense cannot effectively prepare for Mr. Rove’s examination. As discussed above, Rule 16 compels disclosure of such documents even if Mr. Rove remains a subject of a continuing grand jury investigation.