The New York Times
Prosecutor Says Libby Seeks to Thwart Criminal Case
Sat Feb 18, 2006 19:59

Prosecutor Says Libby Seeks to Thwart Criminal Case
By Neil A. Lewis
The New York Times

Saturday 18 February 2006

Washington - A federal prosecutor has said I. Lewis Libby Jr., former chief of staff to Vice President Dick Cheney, is trying to sabotage the criminal case against him by insisting through his lawyers that he be given sensitive government documents for his defense.

In a court filing on Thursday night, the prosecutor said requests by Mr. Libby's lawyers for documents, including the daily intelligence briefs given to the president for nearly a year, were "a transparent effort at 'graymail.' "

The prosecutor, Patrick J. Fitzgerald, said the requests for a large amount of sensitive information beyond what they had been given was unjustified. Mr. Fitzgerald told the federal judge hearing the case that defendants like Mr. Libby had an incentive to derail their trials by asking for sensitive documents that the government might not want discussed openly.

Graymail is the practice of discouraging a prosecution from proceeding by contending that a defendant may need to disclose classified or sensitive information as part of a full defense. Such an approach can force the government to choose between dropping the prosecution or allowing the information to be disclosed at a trial.

Before 1980, some officials escaped prosecution by threatening to disclose unspecified secrets in open court. Congress enacted the Classified Information Procedures Act in 1980 to ensure that the government was not surprised by any disclosures at trial.

If the defense intends to use classified information, it has to inform the government, and then the two sides argue before a judge in secret on whether the information is needed for full defense. If a judge decides that the defendant is entitled to the information, the government has to decide whether to accept the likelihood that the information may be disclosed in a trial or drop the prosecution.

John D. Cline, a lawyer in San Francisco and an authority on the classified-procedures law who is representing Mr. Libby, challenged the accusation that the defense was engaging in graymail. Mr. Cline said the 1980 law made graymail impossible because the government knew exactly what information the defense was seeking, and a judge must rule on whether it is necessary to the defense case.

"We are working lawfully and properly through the C.I.P.A. procedures to obtain documents essential to Mr. Libby's defense," he said. "All we want is a limited number of key documents that Mr. Libby either wrote or reviewed during the most critical period in this case."

Mr. Libby is charged with five felony counts, accusing him of lying to investigators about his role in the disclosure of the identity of a Central Intelligence Agency operative, Valerie Wilson. His lawyers have said they intend to mount a defense built on the idea that he was dealing with issues far more momentous than the disclosure of Ms. Wilson's identity to reporters. To that end, they have asked Mr. Fitzgerald to turn over many documents from the vice president's office and the C.I.A.

Mr. Libby's lawyers have asked Mr. Fitzgerald to give them the President's Daily Brief for 277 days beginning in May 2003. They have said those documents "are material to establishing that any misstatements he may have made were the result of confusion, mistake and faulty memory resulting from his immersion in other, more significant matters, rather than deliberate lies."

Mr. Fitzgerald called the request "breathtaking" and noted that the daily brief was "an extraordinarily sensitive document." He said the disclosure of part of the Aug. 6, 2001, daily brief to the Sept. 11 commission was the sole instance of a daily brief's being publicly disclosed.

In addition, the lawyers have asked Mr. Fitzgerald to provide information that he obtained from reporters about other officials who might have spoken to them about Ms. Wilson.

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