A former White House aide's wide-ranging demand for classified intelligence documents to aid his defense in the CIA leak case would sabotage the case if granted, the prosecutor is charging.
Special Counsel Patrick Fitzgerald suggested that lawyers for I. Lewis "Scooter" Libby were trying to torpedo the government's case by pressing for the documents, including nearly a year's worth of the Presidential Daily Brief, a summary of threats to the U.S. that the Bush administration has fiercely guarded in the past.
In court papers filed late Thursday, Fitzgerald also asserted that granting such a request would damage national security and presidential executive privilege. He called it "nothing short of breathtaking."
"The defendant's effort to make history ... is a transparent effort at 'greymail,"' he said, referring to past attempts by government officials charged with wrongdoing to derail their prosecutions by trying to expose national security secrets.
Libby, 55, was indicted last year on charges that he lied about how he learned CIA operative Valerie Plame Wilson's identity and when he subsequently told reporters. Libby's trial is set for January 2007.
Libby's lawyers have that they need the secret briefings prepared for President Bush to show that Libby had more pressing matters of national security on his mind than the disclosure of Plame's identity. The documents will show Libby "was immersed throughout the relevant period in urgent and sensitive matters," the defense said in court papers.
In a 32-page response to Libby's requests, Fitzgerald said he already has turned over more than 11,000 pages of classified and unclassified evidence to the defense — more than required under law.
But the defense also is seeking access to every Presidential Daily Brief from May 2003 to March 2004, amounting to 277 intelligence reports.
The prosecutor quoted Vice President Dick Cheney, Libby's former boss, as describing the PDBs as the "family jewels" of government, and warned U.S. District Judge Reggie B. Walton that turning over such highly classified documents would provoke a lengthy legal battle with the president.
At the beginning of the Bush administration access to the PDBs was reduced within the government to reduce the risk of leaks. The White House publicly released selected briefings only under great pressure and careful negotiation with the commission investigating the government's performance surrounding the Sept. 11, 2001, terrorist attacks. The administration has argued that releasing daily intelligence memos could hamper future presidents' ability to get candid advice.
Libby also is seeking access to more information about news reporters connected to the case and records about Plame kept by the CIA, including any assessments of damage to national security by the public disclosure of the operative's identity.
Fitzgerald said he does not have to prove that the disclosure damaged national security to secure a conviction of Libby for perjury, false statements and obstruction of justice.
He also said he is not required to search every government agency's files for evidence that might help Libby's defense.
Fitzgerald said he has given defense attorneys everything he has gathered on Libby's conversations with reporters. But the prosecutor said he is not required to give the defense the statements and testimony of reporters who will be called as government witnesses at trial.
The prosecutor also said he gave the defense documents about reporters who obtained information about Plame from sources other than Libby. But Fitzgerald said he has withheld the specifics about the reporters' sources to protect grand jury secrecy in his ongoing investigation.
Plame's identity was published in July 2003 by columnist Robert Novak after her husband, former U.S. Ambassador Joseph Wilson, accused the administration of twisting intelligence about Iraq's efforts to buy uranium "yellowcake" in Niger. The year before, the CIA had sent Wilson to Niger to determine the accuracy of the uranium reports.