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He doesn’t deny what he said to investigators may have been wrong, but he believes it was a simple mistake, not an intentional lie. That contention will be the central focus in the upcoming trial of the vice president’s former chief of staff. Just a month away, the criminal trial of I. Lewis “Scooter” Libby Jr. in the U.S. District Court for the District of Columbia is one of the most anticipated in recent years and will likely bring a number of high-level Bush administration officials — including Vice President Dick Cheney — to the witness stand. The courthouse is already preparing for the avalanche of attention. Following the example of the Enron trial in Houston earlier this year, court officials are wiring the building to allow reporters wireless access for blogging in a special media room that will have a closed-circuit video feed of the proceedings. But as the Jan. 16 trial date draws near, court documents make clear the case will hinge on why Libby’s account to federal investigators of his conversations with three reporters — Time‘s Matthew Cooper, NBC’s Tim Russert, and Judith Miller, formerly of The New York Times — differs from their testimony. Libby is charged with five felony counts of false statements, obstruction of justice, and perjury in connection with what he told the FBI and a grand jury about these conversations. He was the only person charged as a result of Special Prosecutor Patrick Fitzgerald’s 2-1/2-year investigation into whether classified information about Valerie Plame’s CIA employment was illegally leaked to the press. In essence, the jury will be asked to decide whether Libby knowingly lied about his conversations with reporters about Plame, someone prosecutors say he paid close attention to because of her husband’s criticism of the Bush administration’s rationale for the Iraq war. Or, as Libby’s defense lawyers argue, was he so busy dealing with weighty national security matters that he simply forgot what he told these reporters when questioned months later? The court has sent out a few hundred jury summonses — the standard for a trial expected to last six weeks. It’s unclear how long voir dire will take, but if the proposed questionnaire is any indication, the defense is hoping to ask prospective jurors a litany of complicated questions. Would their feelings about Iraq affect how they view Libby, a key official advocating the 2003 U.S. invasion? Have they been following the recent political scandals of people such as Jack Abramoff or Rep. William Jefferson (D-La.)? Or do they believe that “memory is like a videotape, in that people can �play back’ events?” Exactly how each side will make its case is still taking shape. The defense says it has subpoenaed several news reporters, two of whom it claims may resist testifying. It also subpoenaed Washington Post editor Bob Woodward for tapes of a conversation he had with Richard Armitage, the former deputy secretary of state who first leaked Plame’s CIA employment to the press. And defense attorneys plan to subpoena Miller again for copies of reporting material during the month she spoke with Libby — material the judge ruled in May that she did not have to turn over. And the attorneys are scheduled to appear before Judge Reggie Walton on Dec. 19 to hammer out whether key evidence will be permitted — or barred — from the trial. FORGETFUL LIBBY From the start, Libby’s lawyers have tried to tie the prosecutors’ hands. First, the team — led by William Jeffress of Baker Botts; Theodore Wells Jr. of Paul, Weiss, Rifkind, Wharton & Garrison; and John Cline of Jones Day — sought access to classified material. And when they won the right to many of those documents — from handwritten notes to summaries of the presidential daily briefings — they fought to get this material into the case. In a Nov. 15 ruling, Walton allowed the defense to discuss many of the documents but said he won’t decide whether they will all become part of the evidence until trial.
• Will Scooter Libby Get a Pardon for Christmas? (November 20, 2006)• Walton Denies Classified Documents as Evidence in Libby Trial (September 25, 2006)• Motion to Postpone Libby Trial Met with Reservations (July 10, 2006)• Libby’s Lawyers Look to Documents for Defense (June 5, 2006)

These documents are key to Libby’s memory defense. Basically, Libby’s lawyers will argue that he had better things on his mind than Plame at the time. At trial, Libby is expected to take the stand to go through dozens of classified documents, which cover nine areas of national security. The material is limited to key dates surrounding Libby’s conversation with the reporters in the summer of 2003. It will span issues from the Israeli-Palestinian conflict to Pakistani scientist A.Q. Khan’s acquisition of nuclear weapons to the upheaval in Liberia that led to the ouster of then-President Charles Taylor to a diplomatic crisis over the arrest of Turkish soldiers in Iraq by the U.S. military. Only 100 of these documents may be admitted directly. Most of the material will be used as “dots” on a PowerPoint presentation the defense will present to show how busy Libby was. These documents are the defense’s way of getting around the troublesome problem of asking Libby to remember the complex matters he was dealing with while maintaining his claim that he had a faulty memory about Plame. Unlike other cases that involve a significant amount of classified information, the material in this case is not as central to the prosecution’s charges. The final lists of the classified material for trial are almost complete. On Dec. 14, Fitzgerald disclosed that he will not appeal Walton’s earlier ruling allowing Libby to use most of the documents. Fitzgerald’s decision came after the White House said it wouldn’t block the use of that classified material. Though Libby’s core defense will center on his memory, he will also attempt to explain his involvement in the White House campaign to rebut claims by Plame’s husband, former Ambassador Joseph Wilson IV, that the “16 words” from President Bush’s 2003 State of the Union address about Iraq’s alleged attempt to seek uranium from Niger were false. Libby’s argument: that he intended to challenge Wilson on the merits, not by leaking his wife’s identity to the press. He plans to use 29 classified documents to make that point. Defense lawyers have asked Walton to bar Fitzgerald from discussing certain topics. First, his lawyers want to keep out any testimony about the reporters’ litigation against the grand jury subpoenas or discussion of Miller’s incarceration. Prosecutors, however, argue that some of this evidence is critical to showing that even after signing a confidentiality waiver, Libby’s actions “reflected, at a minimum, ambivalence about the prospect of the reporters testifying and, at worst, an effort to color their testimony.” Next, Libby’s attorneys hope to exclude any discussion about whether Plame’s employment with the CIA was classified or what potential or actual damage the disclosure may have caused, arguing that it is irrelevant to whether Libby misled investigators. But Fitzgerald wants to be able to show that Libby knew that Plame’s status might have been classifed before Libby spoke with the FBI. Both sides declined comment. RELYING ON REPORTERS To win, Fitzgerald will need to prove Libby knowingly lied to the grand jury. To do this, he will try to show a motive by arguing Libby “had strong reason to believe that the reporters would never testify” even though he signed a waiver allowing reporters to talk. He will likely rely on testimony from Cooper, Russert, and Miller — all of whom are potential witnesses. The most important of the three will likely be Russert. Libby told the FBI he first learned of Plame’s CIA position from the NBC newsman. Russert, who also testified before the grand jury, has denied Libby’s assertion. Fitzgerald — whose team includes Debra Bonamici, Kathleen Kedian, and Peter Zeidenberg — will also try to prove Libby must have remembered those conversations. In court filings, Fitzgerald has pointed to Libby’s July 8, 2003, meeting with Miller, when he told Miller about Plame. This was also the meeting where Libby had been specially authorized by the president to disclose previously classified information regarding Saddam Hussein’s alleged attempt to procure uranium from Niger. These circumstances, Fitzgerald wrote in a Nov. 16 filing, show that “responding to Mr. Wilson’s allegations and the criticism of the White House’s statements of Iraq and uranium was a sufficiently high priority.” Fitzgerald has indicated that he will introduce full transcripts of Libby’s grand jury testimony — a move the defense opposes, although Fitzgerald only expects to show excerpts during trial. Prosecutors have asked Walton to bar the defense from talking about the government’s charging decisions in the leak investigation. Libby’s defense lawyers argue that some information about why some people were not charged is important in assessing the bias of a witness. They note that “certain potential witnesses have admitted they gave inaccurate information to the grand jury” and that “potential witnesses gave testimony that directly conflicts with the testimony of other potential witnesses.” Fitzgerald is also likely to call other government officials with whom Libby spoke about Plame, including Cheney; Marc Grossman, former undersecretary for political affairs; and David Addington, Cheney’s legal counsel. During cross-examination, defense lawyers will likely attack the credibility or motives of these witnesses and the reporters. Court filings indicate the defense plans to challenge Cooper’s account of his conversations with Libby, stating it’s “very much at issue in this case.”

Emma Schwartz can be contacted at [email protected].

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