Lawyers for former White House aide I. Lewis "Scooter" Libby say a prosecutor is trying to "have it both ways" by playing up President Bush and Vice President Dick Cheney's role in leaking intelligence on Iraq to reporters but refusing to turn over evidence in the case.
In a court filing late Wednesday, the lawyers said the criminal case against Libby stemming from the leak of a CIA officer's identity is much broader and no longer deals solely with Cheney's former chief of staff, as Special Counsel Patrick Fitzgerald contends.
Fitzgerald revealed last week in a court filing that Bush cleared the way for Cheney to authorize Libby to counter administration critics on Iraq by leaking previously classified intelligence information to reporters.
Meanwhile, U.S. District Reggie B. Walton, who is presiding over Libby's perjury case, threatened Thursday to issue a gag order for defense attorneys and prosecutors over the release of filings to reporters before they are placed on the court docket.
In a brief order, Walton warned that such action by the lawyers could impair the court's "ability to ensure that both sides receive a fair trial." He gave the lawyers until April 21 to say why the judge should not restrict their contact with the media.
Walton appears upset over the release Tuesday night of a letter from Fitzgerald to the judge correcting one sentence in a prosecution filing from a week ago.
Libby's defense team released the letter to reporters via e-mail Tuesday night. The letter didn't show up on the court's docket until Wednesday afternoon.
Libby, 55, was charged last October with lying to the FBI and a federal grand jury about how he learned and when he subsequently told reporters about CIA officer Valerie Plame Wilson. He faces trial in January 2007 on five counts of perjury, false statements and obstruction of justice.
Plame's identity as a CIA operative 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 purported efforts to buy uranium "yellowcake" in Niger to justify going to war. The year before, the CIA had sent Wilson to Niger to determine the accuracy of the uranium reports.
Libby's lawyers said in Wednesday's filing that Fitzgerald, with his revelations about Bush and Cheney, set off "an avalanche of media interest" that shows "that this case is factually complex and that the government's notion that it involves only Mr. Libby and (the Office of the Vice President) is a fairy tale."
Fitzgerald and Libby's lawyers are fighting over a defense request for a wide assortment of documents that may be at the White House, State Department and the CIA. Libby's lawyers said Fitzgerald has collected hundreds of thousands of documents but given the defense only about six boxes, or 14,000 pages of records.
The defense attorneys want records related to Wilson's trip to Niger because they said they may call him as a hostile witness.
Libby's lawyers also want documents that may explain how Bush decided to declassify portions of the October 2002 National Intelligence Estimate that concluded Iraq had tried to obtain uranium for a nuclear weapon from African nations.
On Tuesday, Fitzgerald corrected a sentence from last week's filing about declassified portions of the NIE, conceding that he had made it sound like "a key judgment" of the report was that Iraq was "vigorously trying to procure uranium" to make a nuclear bomb.
Those exact words aren't in the "key judgments" section of the NIE, but they appear elsewhere in the report.
Fitzgerald said he should have explained that Libby was told to talk to New York Times reporter Judith Miller about "some of the key judgments of the NIE and that the NIE stated that Iraq was vigorously trying to procure uranium."
Libby's defense team also wants records related to former CIA Director George Tenet's subsequent statements that allegations about Iraq and Niger in the NIE had been largely discounted before Bush included the now-controversial 16 words about Iraqi attempts to obtain uranium in Africa in his 2003 State of the Union address.
Libby's lawyers dispute Fitzgerald's contention that Libby should not be given any of the documents because he personally had not seen the records.
The defense attorneys said the Libby's defense will center on whose memory is accurate and whose versions of conversations can be trusted — Libby's, or those of reporters and other government officials.
In Wednesday's filing, Libby's lawyers focused on three potential witnesses: State Department official Marc Grossman; former White House Press Secretary Ari Fleischer; and White House senior adviser Karl Rove.
The defense attorneys said they want to determine whether Grossman lied about a conversation he says he had with Libby about Plame to protect the State Department from embarrassment. They said they also want to know how Fleischer found out about Plame and who he talked to.
And they said they likely will call Rove as a witness. Rove is still under investigation in the case, but the defense attorneys said that "does not diminish his importance in this case."