Thursday, April 06, 2006

Libby's Fishing Expedition Damaging to Bush

In preparation for his defense, attorneys for former Vice Presidential Chief of Staff Scooter Libby are asking the government to turn over anything and everything related to Ambassador Joe Wilson's trip to Niger prior to the decision to go to war with Iraq from four government agencies, much of which involves classified information. According to Prosecutor Patrick Fitzgerald's response to Libby's latest discovery request, the government has already furnished the defense 12,300 pages of classified and unclassified documents, and is preparing to turn over an addition 1,400 pages of handwritten notes. A perusal of Fitzgerald's response leads one to reach only one conclusion--Libby's attorneys are on a fishing expedition--because the documents being requested cannot help his defense and can only further damage the credibility of the Bush administration he formerly served.

Fitzgerald's response to Libby's discovery reminds us what Libby is accused of doing, as well as what he is not accused of doing. The charges against Libby by the government are quite limited: whether Libby "lied to the grand jury and the FBI about his acquisition and disclosures to the media of information concerning Valerie Plame Wilson's employment by the CIA." The prosecutor reminds us that Libby is not charged with disclosing classified information, or any conspiracy of such.

Yet, Libby's attorneys believe the requested information is necessary to show that Libby was authorized by none other than the President of the United States to disclose what had been considered classified information--the National Intelligence Estimate (NIE) on Iraq's preparations and capabilities concerning weapons of mass destruction. We learn from Fitzgerald's response that Libby has testified to the grand jury that Vice President Cheney specifically told him that President Bush had authorized Libby to disclose relevant information concerning the NIE to NY Times reporter Judith Miller. Libby also testified that he confirmed with a White House counsel before making disclosures to Miller that the President's decision to authorize the release of NIE information had the legal effect of declassifying that information.

It is Bush's reported authorization of the leaking of classified information that is grabbing all of the headlines today, particularly given the White House's previous position that it had not authorized anyone to leak Plame's identity. The President has on many occasions in the past expressed his disdain towards persons who leak. The insistence of Libby's attorneys that information pertaining to the declassification of the NIE materials does nothing to further his own defense, but as evidenced by the media's reaction to the disclosure today, does great harm to the President's credibility.

Fitzgerald, in explaining the irrelevance of the NIE declassification by the President, notes that the White House had staked its credibility on there being no White House involvement in the leaking of information concerning the outing of Valerie Plame. If the information indeed had been declassified by the President as asserted by Libby, then why did he find it necessary to lie to FBI agents and the grand jury about his role in the whole matter?

The government standard for the discovery Libby's attorneys are seeking is whether "there is a strong indication that the material sought will play an important role in uncovering admissible evidence, aiding witnesses preparation, corroborating testimony or assisting in impeachment or rebuttal." Answering this question, the prosecutor concludes: "Against the backdrop of the limited charges in this indictment – that defendant lied to the grand jury and the Federal Bureau of Investigation about his acquisition and disclosures to the media of information concerning Valerie Plame Wilson’s employment by the Central Intelligence Agency – defendant’s latest discovery requests fail this test."

Demonstrating just how narrowly focused Fitzgerald is trying to keep the case against Libby, among potential government witnesses, Fitzgerald discloses that the government does not intend to call former CIA Director George Tenet, NSA advisor Stephen Hadley or Karl Rove as witnesses--all thought to be critical players in the leaking of Plame's identity. Interestingly, former White House press secretary Ari Fleischer figures to be a key witness for the government at Libby's trial according to Fitzgerald. Key witnesses the defense intends to call include Colin Powell, George Tenet and Karl Rove.

The only thing one can conclude from today's developments in the Libby case is that his defense team is not at all concerned about how much damage they do to the White House. Perhaps that is the key to Libby's defense. The end game may be to turn up the heat on the White House to pressure Bush into issuing a presidential pardon of Libby. That is, after all, how the President's father dealt a final blow to the Iran-Contra investigation as he was leaving office--granting a pardon to former Defense Secretary Caspar Weinbarger.

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