WASHINGTON – Vice President Dick Cheney's former chief of staff intends to load up his criminal trial with information about nine national security matters, the names of foreign leaders and details about various terrorist groups, say court filings in the Valerie Plame leak case.
The papers filed this week hint at what has been taking place behind closed doors as Special Counsel Patrick Fitzgerald tries to limit the amount of classified data that I. Lewis "Scooter" Libby is permitted to use at his trial in January.
U.S. District Judge Reggie Walton is asking whether classified evidence would overlap Libby's likely trial testimony. Libby's lawyers have already said he will take the witness stand to deny lying to the FBI in its investigation of the Plame leak.
Even if prosecutors agreed ahead of time about the importance of "the nine national security matters" he wants to disclose, Libby would be entitled to introduce additional evidence, his lawyers wrote.
In court documents, prosecutors argued that it would be "unnecessarily wasteful of time" to allow Libby to present "names of foreign leaders or government officials of other countries, or the names and histories of various terrorist groups."
The danger for prosecutors is that the sheer volume and extreme sensitivity of classified information Libby wants to introduce could scuttle the trial.
Once the judge identifies classified information Libby is entitled to present in order to get a fair trial, U.S. intelligence agencies must rule on whether the secrets can be declassified. The case would collapse if the intelligence agencies refuse to declassify the information.
Libby is charged with five felony counts of perjury, obstruction and making false statements to the FBI.
He is accused of lying about how he learned of Plame's CIA employment and what he told reporters about her when her husband, former U.S. Ambassador Joseph Wilson, was accusing the Bush administration of twisting prewar intelligence to help sell the public on waging war against Iraq.
Libby plans to use what his lawyers call "a memory defense" and he must be allowed to demonstrate how busy he was, his attorneys say.
Any incorrect information the former White House aide gave investigators about his conversations with reporters was due to "the crush of Mr. Libby's duties," his lawyers said. Libby's main assertion in his statements to investigators was that he learned about the CIA identity of Wilson's wife from reporters.
Prosecutors say there is no dispute that Libby was busy, but that he should not be allowed at the trial to describe so much classified information — "as if each particular item overwhelmed his ability to remember and to not fabricate other conversations."
Fitzgerald wrote that Libby's proposals for introducing classified information are "so extraordinary both in breadth ... and in depth" that the evidence takes on "a misleading aura, is confusing" if presented to a jury.