The prosecution of Lewis 'Scooter' Libby has drama aplenty, though in its pre—trial phase, the action is visible only to those who carefully dissect the complex and dry language of seemingly—arcane filings with the court.

Just before midnight last night Lewis Libby filed a Memo in Reply to the Government's Response to the Defendant's Third Motion to Compel Discovery. In what for non—lawyers may generally seem a dry discussion on a dispute about what documents in the government's possession Fitzgerald must turn over to Libby to assist him in trial preparation, there are a number of blockbusters.

I will discuss these in greater detail in posts over the holiday weekend. Early next week, a longer article will appear. Like DNA tests, a full analysis sometimes requires time.

For the moment, the pleading suggests what I have argued previously, that this case was a CIA Gambit against the White House, that it was a mediagenic crisis, and that the Special Prosecutor is playing a razzle—dazzle game of making broad charges and then refusing to provide evidence in support of them, asserting that the charges against Libby are so narrow such evidence is not relevant.

Here are some things which caught my eye and are worthy of your attention:

The CIA's referral

I have always wondered how the CIA complied with the requirements of a proper referral letter. According to former federal prosecutor Joseph DiGenova, such referrals must establish that the person in question was a covert agent whose identity the agency had taken all reasonable steps to protect. The publicly known facts simply made it unlikely Valerie Plame met either of those tests. To date, the Special Prosecutor has refused to turn over the referral, and, understandably, Libby is fighting to get that document. In this pleading he argues:

To the extent that the CIA's documents suggest the Department of Justice hesitated to begin its investigation of the disclosure of Ms. Wilson's identity and that hesitancy was related to the Department of Justice's uncertainty that any crime had been committed based on the information provided by the CIA, the defense should have the opportunity to use such information to prepare to cross—examine CIA witnesses at trial.

Journalism used as evidence

Libby reveals that articles by Pincus, Priest and Allen of the Washington Post and Matt Cooper , Calabresi and Dickenson of Time magazine which charged that Libby was engaged in a smear campaign to punish Wilson by outing his wife 'were used as grand jury exhibits.'

That's some evidence! Lucky for Fitzgerald that he didn't have any Jayson Blair articles among them.

What Libby knew and didn't know

As to the government's refusal to hand over evidence that Ms. Plame was 'classified' —  something charged in the indictment —  Libby notes that he was not the source of the Novak article and testified unequivocally that he did not understand her employment at the CIA to be classified information.

The government surely cannot, on the one hand, contend that Mr. Libby knew he had revealed classified information (and thus felt in jeopardy of being fired) and on the other hand withhold from the defense information that would tend to prove her employment status was not classified and that others who knew of that employment had the same understanding.

Fitzgerald's withheld evidence

Importantly, Libby challenges the notion that the prosecutor can withhold from him documents related to 'innocent accused' (presumably Richard Armitage) and 'ongoing subjects of grand jury investigation.' In particular he seeks documents relating to Under Secretary of State Grossman, Karl Rove and Ari Fleischer. (As to the latter, the memorandum refers to a Sealed Declaration of Theodore V. Wells. Jr., Libby's lawyer, dated April 12, 2006). A 'sealed declaration' is certainly intriguing.

The secret war within the government

Also of note is this assertion by Libby:

The defense intends to show the jury that the controversy over intelligence failures during the spring and summer of 2003 led certain officials in the White House, State Department and CIA to point fingers at each other. This bureaucratic infighting provides necessary context for the testimony of witnesses for different government agencies. [/quote]

We may finally get some on—the—record sworn testimony regarding the suspected efforts by some in the CIA and elsewhere to undercut Bush's Iraq policy.

Plame's importance

Libby also asserts that Ms. Wilson role was never considered significant by those attempting to respond to Wilson's charges and observes:

In fact as the government is well aware, contemporaneous documents reflect the points that Mr. Libby was to make to reporters and these documents do not include any information about Mr. Wilson's wife. Further, the theory  ignores the fact that neither the indictment nor the evidence supports the notion that  Mr. Libby told any reporter that Mr. Wilson's wife sent him on the Niger  trip.

The bias of George Tenet

Libby for the first time claims bias on the part of the CIA which may have extended to Director George Tenet :

He notices that 'CIA officials have been openly critical of the OVP [Office of the Vice President]'

Further he argues, if Tenet was involved in

...the creation of the referral documents, or actively pushed the Department of Justice to investigate the disclosure of Ms. Wilson's identity, the referral documents would show that the bias against Mr. Libby reached to the highest levels of the CIA and did not simply represent the complaints of lower ranking employees.

So significant is this referral letter that Libby requests the Court at a minimum to examine the referral letter in camera, and if the Court determines that the document is privileged to make the document and specific findings of fact official to permit any necessary appellate review.
 
Clarice Feldman is an attorney in Washington, DC, and a frequent contributor.