WASHINGTON — Former White House aide I. Lewis “Scooter” Libby, charged with perjury in the CIA leak case, cannot be told the identity of another government official who is said to have divulged a CIA operative’s identity to reporters, a federal judge ruled late last week.
At the same time, U.S. District Judge Reggie B. Walton said Libby could have copies of notes he took during an 11-month period in 2003 and 2004 while serving as chief of staff to Vice President Dick Cheney.
The judge also set the stage for a showdown in late April over the defense’s plans to subpoena reporters and news organizations for notes and other documents in the leak of Valerie Plame’s identity.
During a hearing Feb. 24, Walton said Special Counsel Patrick Fitzgerald could keep secret the other government official’s identity because that person had not been charged and had a right to privacy.
The judge put off deciding whether Libby can have access to highly classified presidential daily briefs, summaries of intelligence on threats against the United States that Libby and Cheney received six days a week from a CIA official.
Walton said he is concerned that Libby’s request could “sabotage” the case because President Bush probably would invoke executive privilege and refuse to turn over the classified reports.
“The vice president — his boss — said these are the family jewels,” the judge said, referring to Cheney’s past description of the daily briefings. “If the executive branch says, ‘This is too important to the welfare of the nation and we’re not going to comply,’ the criminal prosecution goes away.”
Libby, 55, was indicted last year on charges that he lied about how he learned Plame’s identity and when he subsequently told reporters. Libby’s trial is set for January 2007.
The CIA operative’s identity was published in July 2003 by syndicated columnist Robert Novak after Plame’s husband, former U.S. Ambassador Joseph Wilson, accused the Bush administration of twisting intelligence about Iraq’s efforts to buy uranium in Niger. The year before, the CIA had sent Wilson to Niger to determine the accuracy of the uranium reports.
Libby’s lawyers and Fitzgerald disagreed over whether the unidentified government official — who does not work at the White House — was referring to Plame or her husband when he said, “Everyone knows,” during a taped interview with investigators.
The defense said the official meant that most reporters knew that Plame worked at the CIA, as Libby testified before a federal grand jury. But Fitzgerald said the reference was to Wilson, who was not identified in initial media reports about the trip to Niger.
Ted Wells, another Libby lawyer, said the judge shouldn’t worry about provoking the president, the CIA or the media and needs to take time to make sure Libby gets the evidence he needs to defend himself.
“If it’s done in a quick and dirty way, he’s going to be convicted,” Wells said.
Walton denied a defense request to stop Fitzgerald from filing information that only the judge can review, such as strategy memos and classified information that he wants withheld from Libby’s legal team. Walton said he needs to see what Fitzgerald is withholding from the defense to ensure the prosecutor is making the correct call.
The defense was told that the White House had recently located and turned over about 250 pages of e-mails from the vice president’s office. Fitzgerald, in a letter last month to the defense, had cautioned Libby’s lawyers that some e-mails might be missing because the White House’s archiving system had failed.
The 2 ½-hour hearing not only kicked off the battle over how much classified information a jury will hear when Libby’s case goes to trial, but also showed how cumbersome it is to deal with such secret evidence.
When Wells tried to hand Walton a blue pouch — complete with a key — containing classified documents, a court security officer called the judge’s clerk over and whispered instructions, presumably on its handling.
“I would not be a good safe-breaker,” Walton joked as he fumbled with the pouch’s lock before opening it.