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Context of 'February 27, 2006: Judge May Allow Some, Not All, Classified Materials into Libby Trial'

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Lewis “Scooter” Libby, the chief of staff for Vice President Cheney, is interviewed by the FBI concerning the outing of CIA agent Valerie Plame Wilson (see June 23, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003). (Office of the Vice President 10/14/2003 pdf file; US District Court for the District of Columbia 10/28/2005 pdf file; US District Court for the District of Columbia 10/30/2006 pdf file; MSNBC 2/21/2007) Libby tells investigators that in his conversations with reporters Judith Miller (see June 23, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003) and Matthew Cooper (see 2:24 p.m. July 12, 2003) he was careful to tell them that the information about Plame Wilson was merely “unsubtianted gossip” and not necessarily reliable. He also claims that, before he spoke to either Miller or Cooper, he learned of Plame Wilson’s CIA status from another journalist, NBC’s Tim Russert (see July 10 or 11, 2003). Libby is lying in both instances (see August 7, 2004). (US District Court for the District of Columbia 10/28/2005 pdf file; Waas 6/8/2006; US District Court for the District of Columbia 10/30/2006 pdf file)

Lewis “Scooter” Libby, the chief of staff for Vice President Dick Cheney, is interviewed for a second time (see October 14, 2003) by the FBI concerning the outing of CIA agent Valerie Plame Wilson (see June 23, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003). (MSNBC 2/21/2007) During one or both interviews, Libby insists that he learned of Plame Wilson’s identity from journalists (see July 10 or 11, 2003), a lie that will play a large part in his upcoming indictment (see October 28, 2005). Investigators are compiling evidence that he learned of Plame Wilson’s CIA status from Cheney and other senior government officials (see (June 12, 2003)). Some investigators will come to believe that Libby is lying, and continues to lie, to protect Cheney’s involvement in attempting to discredit Plame Wilson’s husband, war critic Joseph Wilson (see October 1, 2003). (Waas 2/2/2006)

Lewis “Scooter” Libby, the former chief of staff for Vice President Dick Cheney, testifies under oath before the grand jury investigating the leak of CIA agent Valerie Plame Wilson’s identity (see December 30, 2003 and January 2004). According to the indictment that will later be issued against Libby (see October 28, 2005), he commits perjury during his testimony. (US Department of Justice 3/5/2004 pdf file; MSNBC 2/21/2007; Washington Post 7/3/2007) Libby is questioned by special prosecutor Patrick Fitzgerald, who is aided by deputy special counsels Ron Roos, Peter Zeidenberg, and Kathleen Kedian. At the beginning of the questioning, Fitzgerald ensures that Libby understands the circumstances that constitute perjury.
Denies Being Source for Columnist - Fitzgerald asks Libby about his involvement as a source for columnist Robert Novak, who revealed Plame Wilson’s secret CIA status in a column (see July 14, 2003). Libby denies being a source for Novak.
Admits Learning about Plame Wilson's CIA Status from Cheney - He admits that Cheney told him that Joseph Wilson’s wife was a CIA officer: while discussing Wilson’s trip to Niger (see February 21, 2002-March 4, 2002), Libby says of Cheney: “And in the course of describing this he also said to me in sort of an off-hand manner, as a curiosity, that his wife worked at the CIA, the person who—whoever this person was. There were no names at that stage so I didn’t know Ambassador Wilson’s name at that point, or the wife’s name.” Libby also admits that he knew Plame Wilson worked at the “functional office” of the CIA that handled the Iraq WMD issue.
Libby 'Forgot' He Already Knew about Plame Wilson - Later in the interview, Fitzgerald asks again if it is “fair to say that [Cheney] had told you back in June, June 12 or before… that his wife worked in the functional office of counterproliferation of the CIA (see (June 12, 2003)). Correct?” Libby answers, “Yes, sir.” Fitzgerald then asks: “So when you say, that after we learned that his wife worked at the agency, that became a question. Isn’t it fair to say that you already knew it from June 12 or earlier?” Libby then answers: “I believe by, by this week I no longer remembered that. I had forgotten it. And I believe that because when it was told to me on July 10, a few days after this article, it seemed to me as if I was learning it for the first time. When I heard it, I did not think I knew it when I heard.” Libby is referring to his claim that he originally learned of Plame Wilson’s identity from NBC reporter Tim Russert (see July 10 or 11, 2003), a claim that Russert will strongly deny (see February 7-8, 2007). (US Department of Justice 3/5/2004 pdf file)
Claims Not to Have Discussed Plame Wilson until after Novak's Column Published - Fitzgerald asks Libby if he recalls the question of whether the possibility that Plame Wilson sent her “husband on a junket” (see July 7, 2003 or Shortly After), and whether he discussed it with Cheney. Libby replies: “I don’t recall the conversation until after the Novak piece. I don’t recall it during the week of July 6. I recall it after the Novak… after the Novak article appeared.” Fitzgerald, obviously unconvinced by Libby’s claim, asks, “And are you telling us under oath that from July 6 to July 14 you never discussed with Vice President Cheney whether Mr. Wilson’s wife worked at the CIA?” Libby responds: “No, no, I’m not saying that. On July 10 or 11 I learned, I thought anew, that the wife—that the reporters were telling us that the wife worked at the CIA. And I may have had a conversation with the vice president either late on the 11th or on the 12th in which I relayed that reporters were saying that.” Libby is lying by claiming he never discussed Plame Wilson with Cheney or other White House officials between July 6 and July 14 (see July 7, 2003 or Shortly After, July 7-8, 2003, July 8, 2003, 12:00 p.m. July 7, 2003, and July 10 or 11, 2003). (US Department of Justice 3/5/2004 pdf file; Waas 1/12/2007)
Denies Learning of State Department Memo until Late September 2003 - Libby also denies learning of the State Department’s interest in the Wilson trip and in Wilson’s wife until after the investigation into Plame Wilson’s identity became public on September 28, 2003, “a couple days after that,” he says. “I don’t have any recollection of an INR [Bureau of Intelligence and Research, the State Department’s intelligence bureau] document prior to that date.” Libby is lying; he learned about the State Department’s inquiry into the Wilson trip, and Plame Wilson’s CIA status, much earlier (see 12:00 p.m. June 11, 2003). He also denies asking the State Department’s Marc Grossman for information on Wilson’s Niger trip, which is most likely another lie (see May 29, 2003). And he claims not to remember if he learned from Grossman that Plame Wilson was a CIA official.
Denies Talking to CIA Official - Libby also claims not to remember discussing Plame Wilson with Robert Grenier, the CIA’s Iraq mission manager. “I don’t think I discussed Wilson’s wife’s employment with, with Mr. Grenier,” he testifies. “I think if I discussed something it was what they knew about the request about Mr., about Mr. Wilson. I don’t recall the content of the discussion.” Asked “if there was an urgency to the conversation” with Grenier, Libby replies, “I recall that I was reaching Mr. Grenier—I was trying to reach Mr. McLaughlin [John McLaughlin, then the CIA’s deputy director, who spoke to Cheney the day before about Plame Wilson—see 12:00 p.m. June 11, 2003) and couldn’t, and spoke instead to Mr. Grenier. And so if I did that instead of just waiting for Mr. McLaughlin, it was probably something that was urgent in the sense that my boss, the vice president, wanted, wanted to find something out. Not, not necessarily in the real world, but he wanted an answer and usually we try and get him the answer when we can.” Libby did indeed meet with Grenier, and quizzed him about Plame Wilson (see 2:00 p.m. June 11, 2003).
Denies Leaking Name to Post Reporter - Libby claims not to be sure if he was a source for a June 2003 article by Washington Post reporter Walter Pincus (see June 12, 2003), but says he is sure he did not divulge Plame Wilson’s identity to him. “I have no recollection of having discussed it with Mr. Pincus and I don’t think I did,” Libby testifies. He acknowledges that his own notes, entered into evidence by Fitzgerald, show that he discussed the Pincus article with Cheney before it was published. Libby also denies revealing Plame Wilson’s identity to two New York Times reporters, David Sanger and James Risen.
Challenges Wilson's Characterization of Iraq-Niger Claims - Using language similar to that he and other members of Cheney’s staff have used in press conferences and to individual reporters, Libby says that Joseph Wilson’s questioning of the Iraq-Niger claims were ill-informed, and that Wilson was wrong to speculate that Cheney had deliberately ignored the evidence that those claims were false to insist that Iraq had an active nuclear weapons program and therefore constituted a danger to the US (see March 24, 2002, August 2002, March 16, 2003, and July 6-10, 2003). Libby says of Wilson’s op-ed in the New York Times (see July 6, 2003), “It’s a, it’s a bad article.” He admits to being angry over the article, then changes it to being “concerned because it didn’t seem to me an accurate portrayal of the facts.… Upset’s a fair word, I guess.” He admits to discussing the Wilson op-ed with Cheney shortly after its publication, though he is unsure of the exact date of that discussion (see July 6-10, 2003, July 7-8, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003). Libby acknowledges that notations on a copy of the Wilson op-ed are in Cheney’s handwriting (see July 7, 2003 or Shortly After). (US Department of Justice 3/5/2004 pdf file)

Lewis “Scooter” Libby, the former chief of staff for Vice President Dick Cheney, testifies under oath a second time (see March 5, 2004) before the grand jury investigating the leak of CIA agent Valerie Plame Wilson’s identity (see December 30, 2003 and January 2004). According to his later indictment (see October 28, 2005), Libby commits perjury during his testimony. (United States District Court for the District of Columbia 3/24/2004 pdf file; MSNBC 2/21/2007; Washington Post 7/3/2007) There is a certain amount of overlap in the subjects discussed in the two interviews.
Claims to Have Learned Identity from Reporter - Libby tells the jury that he learned of Plame Wilson’s CIA status from NBC reporter Tim Russert (see July 10 or 11, 2003). According to prosecutors’ later filings, Libby says: “Russert asked Libby if Libby was aware that Wilson’s wife worked for the CIA. Libby responded to Russert that he did not know that, and Russert replied that all the reporters knew it.” Russert will deny that he ever said anything of the kind to Libby (see February 7-8, 2007). (United States District Court for the District of Columbia 3/24/2004 pdf file; Brenner 4/2006) Libby testifies about a conversation he had with Cheney in the fall of 2003, when he complained that the White House was not making public statements exonerating him of responsibility for the leak (see Late September or Early October, 2003). Asked by prosecutor Patrick Fitzgerald if he had told Cheney about speaking to reporters regarding Plame Wilson, Libby responds: “I think I did. Let me bring you back to that period. I think I did in that there was a conversation I had with the vice president when all this started coming out and it was this issue as to, you now, who spoke to [columnist Robert] Novak (see July 14, 2003). I told the vice—you know, there was—the president said anybody who knows anything should come forward or something like that.… I went to the vice president and said, you know, ‘I was not the person who talked to Novak.’ And he [said] something like, ‘I know that.’ And I said, you know, ‘I learned this from Tim Russert.’ And he sort of tilted his head to the side a little bit and then I may have in that conversation said, ‘I talked to other—I talked to people about it on the weekend.’” Libby is most likely referring to his conversations with reporters Matthew Cooper (see 2:24 p.m. July 12, 2003) and Judith Miller (see 8:30 a.m. July 8, 2003 and Late Afternoon, July 12, 2003). Fitzgerald asks of the conversation with Cheney, “What did you understand from his gesture or reaction in tilting his head?” Libby replies: “That the Tim Russert part caught his attention. You know, that he—he reacted as if he didn’t know about the Tim Russert thing or he was rehearing it, or reconsidering it, or something like that.… New, new sort of information. Not something he had been thinking about.” Fitzgerald asks: “And did he at any time tell you, ‘Well, you didn’t learn it from Tim Russert, you learned it from me? Back in June you and I talked about the wife working at the CIA?’” Libby responds, “No.” Cheney confirmed Plame Wilson’s CIA status to Libby in June 2003 (see (June 12, 2003)). Fitzgerald asks, “Did he indicate any concern that you had done anything wrong by telling reporters what you had learned?” and Libby again responds, “No.” Libby tells Fitzgerald that he isn’t sure if he mentioned the Cooper and Miller leaks to Cheney. “I did tell him, of course, that we had spoken to the people who he had told us to speak to on the weekend. I think at some point I told him that.” (United States District Court for the District of Columbia 3/24/2004 pdf file; Waas 2/19/2007)
Fails to Disclose Leak to Reporter - In neither appearance before the grand jury does Libby disclose that he discussed Plame Wilson’s identity with New York Times reporter Judith Miller (see June 23, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003). Instead, he testifies that he told Miller that he knew Plame Wilson had had some involvement in sending her husband to Niger (see February 21, 2002-March 4, 2002), but did not reveal her as a CIA agent because he was not aware of her CIA status. Libby is lying (see 12:00 p.m. June 11, 2003 and August 6, 2005). Libby also failed to disclose the conversations he had with Miller when he was twice interviewed by FBI agents working on the leak, in October and November 2003. Fitzgerald will not learn of Libby’s failure to disclose the conversations until late 2005, after Miller’s testimony before the court (see October 7, 2005). (United States District Court for the District of Columbia 3/24/2004 pdf file; Waas 10/11/2005; Waas 10/18/2005)
Libby 'Authorized' to Disclose Classified Information by Bush, Cheney - Libby also tells the grand jury that he had been “authorized” by President Bush, Cheney, and other White House “superiors” in the summer of 2003 to disclose classified information to journalists to defend the Bush administration’s use of prewar intelligence in making the case to go to war with Iraq. According to Libby’s testimony, Cheney authorized him to release classified information, including details of the October 2, 2002 National Intelligence Estimate (NIE—see October 1, 2002), to defend the administration’s use of prewar intelligence in making the case for war; Libby tells the jury that he had received “approval from the president through the vice president” to divulge material from the NIE. He testifies that one portion of the NIE he was authorized to divulge concerned Iraq’s purported efforts to develop nuclear weapons. Libby says that authorization from the president and vice president was “unique in his recollection.” According to court papers filed in regards to his indictment, Libby tells the jury “that he was specifically authorized in advance… to disclose the key judgments of the classified NIE to Miller” because Cheney believed it to be “very important” to do so. Libby adds “that he at first advised the vice president that he could not have this conversation with reporter Miller because of the classified nature of the NIE.” It was then, he says, that Cheney advised him that Bush authorized the disclosure. Cheney told Libby that he, and not Cheney’s press spokeswoman Cathie Martin, should leak the classified information to the press. At the time of the disclosure, Libby says, he knew that only himself, Bush, and Cheney knew that portions of the NIE had been declassified; other senior Cabinet-level officials were not informed of the decision. Libby adds that an administration lawyer, David Addington, told him that Bush, by authorizing the disclosure of classified information, had in effect declassified that information. Many legal experts will disagree with that assessment. Libby considers Addington an expert on national security law. (United States District Court for the District of Columbia 3/24/2004 pdf file; Waas 2/6/2006; Waas 4/6/2006)
Libby's Testimony Met with Disbelief - The prosecutors interrogating Libby are incredulous and disbelieving of many of Libby’s claims. They do not believe his contention that he and Cheney never discussed Plame Wilson between July 6 and July 14—the dates of Wilson’s op-ed (see July 6, 2003) and Novak’s outing of Plame Wilson (see July 14, 2003), respectively. (Libby did indeed discuss Plame Wilson with Cheney and other White House officials during that time period—see July 7, 2003 or Shortly After, July 7-8, 2003, 12:00 p.m. July 7, 2003, July 8, 2003, and July 10 or 11, 2003). They do not believe Libby’s claim that he had “forgotten” about knowing Plame Wilson was a CIA official as early as June 2003 (see 12:00 p.m. June 11, 2003, 2:00 p.m. June 11, 2003, and (June 12, 2003)). And they do not believe Libby’s claim that he had merely passed to Cheney a rumor he had heard from reporter Tim Russert about Plame Wilson’s CIA status (see July 10 or 11, 2003). (United States District Court for the District of Columbia 3/24/2004 pdf file; Waas 1/12/2007)
Drastic Change in Behavior - Steven Aftergood, a senior analyst with the Federation of American Scientists and an expert on government secrecy and classification issues, says that in disclosing the classified information, Libby “presents himself in this instance and others as being very scrupulous in adhering to the rules. He is not someone carried on by the rush of events. If you take his account before the grand jury on face value, he is cautious and deliberative in his behavior. That is almost the exact opposite as to how he behaves when it comes to disclosing Plame [Wilson]‘s identity. All of a sudden he doesn’t play within the rules. He doesn’t seek authorization. If you believe his account, he almost acts capriciously. You have to ask yourself why his behavior changes so dramatically, if he is telling the truth that this was not authorized and that he did not talk to higher-ups.” (Waas 6/14/2006)

After former White House official Lewis Libby’s indictment (see October 28, 2005), he retains the services of three of Washington’s most powerful attorneys: Theodore Wells, William Jeffress, and John Cline. (Easton 2/26/2006) (Cline will not officially join the defense team until mid-November.) (Sterngold 11/22/2005) Wells, who has successfully defended other government officials from criminal charges, is “an excellent choice,” according to criminal defense attorney Jeralyn Merritt. Jeffress is a partner at Baker Botts, the law firm headed by former Secretary of State James Baker. (Jeralyn Merritt 11/3/2005) Cline is an expert on classified government documents; according to former CIA case officer Valerie Plame Wilson, he is “presumably hired to help the defense figure out how to ‘graymail’ the government, that is, force the government to choose between prosecuting an employee for serious crimes or preserving national security secrets.” Stanford University criminal law expert Robert Weisberg says of Cline’s addition to the team: “This is about as subtle as a sledgehammer to the government. This suggests they are going to use a very concerted and aggressive strategy.”
Legal Defense Fund Headed by GOP Fundraiser - Shortly after the indictment, Libby’s legal defense fund is created, headed by former GOP finance chief Melvin Sembler, a Florida real estate tycoon. Sembler is a highly successful fundraiser for Republican candidates, and is a close friend of Vice President Dick Cheney. Lobbyist and former Justice Department spokeswoman Barbara Comstock, a close friend of Libby’s, recruited Sembler to head the fund. According to Comstock, Sembler “holds Scooter [Libby] in high esteem as many members of the committee have. We’re confident that Scooter will be exonerated. He has declared he’s innocent.” (March 11/24/2005) In her 2007 book Fair Game, Plame Wilson will note, “Sembler, ironically enough, was President George W. Bush’s ambassador to Italy when the embassy in Rome first received the forged yellowcake documents, whose contents precipitated [Joseph Wilson]‘s trip to Niger and Libby’s legal odyssey.” (Wilson 2007, pp. 289-290) The first contribution to the defense fund comes from Richard Carlson, a former US ambassador, the former president of the Corporation of Public Broadcasting, and the father of conservative pundit Tucker Carlson. “He spent years in government service,” Carlson will later say of Libby, whom Carlson calls a friend. He “hasn’t made a lot of dough.” The fund will soon raise over $2 million, in part through a Web site, scooterlibby.com (see February 21, 2006). Comstock and former Cheney communications director Mary Matalin (see July 10, 2003 and January 23, 2004) are deeply involved in the fund. The fund’s board of directors and advisers is studded with prominent Republicans, including former Republican presidential candidates Steve Forbes and Jack Kemp; former senator, lobbyist, and actor Fred Thompson; former senator Alan Simpson; former Education Secretary William Bennett; Princeton professor Bernard Lewis, one of the driving intellectual forces behind the invasion and occupation of Iraq; former UN ambassador Jeane Kirkpatrick; former Energy Secretary Spencer Abraham; former Clinton Middle East envoy Dennis Ross; and former CIA Director James Woolsey, another neoconservative ally of Libby’s. (Lichtblau 11/18/2005; Sterngold 11/22/2005; Easton 2/26/2006) Howard Leach and Wayne Berman, two top fundraisers for the 2004 Bush-Cheney presidential campaign, are also part of the defense fund. Comstock tells a New York Times reporter that because both Ross and Woolsey served in the Clinton administration, the Libby defense fund is a bipartisan entity. She adds that the amount of money raised by the fund will not be disclosed: “It’s a private trust fund for a private individual and we haven’t disclosed that.” (Lichtblau 11/18/2005; March 11/24/2005)
Plame Wilson Disappointed in Woolsey's Involvement - Plame Wilson will write of her disappointment that a former CIA director (Woolsey) could come to the defense of someone accused of outing a covert CIA agent. (Wilson 2007, pp. 289-290)

Lewis Libby’s defense team reiterates its demand for the disclosure of 10 months’ worth of Presidential Daily Briefings, or PDBs, some of the most highly classified of government documents (see December 14, 2005, January 9, 2006, and January 23, 2006). Defense lawyer John Cline has said he wants the information in part to compensate for what he says is Libby’s imperfect recollection of conversations he had with Vice President Dick Cheney and other government officials regarding CIA official Valerie Plame Wilson (see October 14, 2003, November 26, 2003, March 5, 2004, and March 24, 2004). In documents filed with the court, Libby’s lawyers argue, “Mr. Libby will show that, in the constant rush of more pressing matters, any errors he made in FBI interviews or grand jury testimony, months after the conversations, were the result of confusion, mistake, faulty memory, rather than a willful intent to deceive” (see January 31, 2006). Special prosecutor Patrick Fitzgerald has already informed Cline that his office has only “received a very discrete amount of material relating to PDBs” and “never requested copies of PDBs” themselves, in part because “they are extraordinarily sensitive documents which are usually highly classified.” Furthermore, Fitzgerald wrote that only a relatively small number of the PDB information he has received refers to Joseph Wilson’s trip to Niger (see February 21, 2002-March 4, 2002). Cline is considered an expert in using “graymail” techniques—demanding the broad release of classified documents from the government, and, when those requests are denied, demanding dismissal of charges against his client. He was successful at having the most serious charges dismissed against an earlier client, former Colonel Oliver North, in the Iran-Contra trials (see May-June, 1989). (US District Court for the District of Columbia 1/31/2006 pdf file; Waas 2/6/2006)

Author and columnist David Corn, who was the first member of the media to speculate that Valerie Plame Wilson’s exposure as a CIA official may have been a crime (see July 16, 2003), now speculates that the Lewis Libby defense team may resort to “graymail” to derail Libby’s criminal prosecution (see After October 28, 2005 and January 31, 2006). Corn writes: “[Y]ears ago defense attorneys representing clients connected to the national security establishment—say, a former CIA employee gone bad—figured out a way to squeeze the government in order to win the case: Claim you need access to loads of classified information in order to mount a defense—more than might truly be necessary. Of course, the government is going to put up a fight. It may release some information—but not everything a thorough defense attorney will say is needed. The goal is to get the government to say no to the informant. Then the defense attorney can attempt to convince the judge that without access to this material he or she cannot put up an adequate defense. If the lawyer succeeds, it’s case dismissed. In such situations, the defendant is essentially saying, ‘Prosecute me and I’ll blow whatever government secrets I can.’” Corn notes the defense’s requests for 10 months of highly classified Presidential Daily Briefings (PDBs), a request that may yet be granted (see February 24, 2006) and as such, will set up a battle with the Bush White House, which is almost certain to refuse to release any PDBs. Corn also notes defense requests for information surrounding Plame Wilson’s covert CIA status (see Fall 1992 - 1996 and April 2001 and After), another request that, if granted, will likely be refused by the CIA. Both scenarios are openings for the defense to ask for the dismissal of all charges against their client. And Libby’s team may ask for further classified information, from the State Department, the National Security Council, and the Office of the President. (Corn 2/6/2006)

Special counsel Patrick Fitzgerald makes a filing to the court in opposition to the Lewis Libby defense team’s requests for highly classified information (see December 14, 2005, January 9, 2006, January 23, 2006, January 31, 2006, and February 21, 2006), requests that some have characterized as an attempt to “graymail” the government (see After October 28, 2005, January 31, 2006, and February 6, 2006) by threatening to reveal national security secrets. In his brief, Fitzgerald calls the defense request for almost 11 months of Presidential Daily Briefings (PDBs) “breathtaking” and unnecessary for a perjury defense. “The defendant’s effort to make history in this case by seeking 277 PDBs in discovery—for the sole purpose of showing that he was ‘preoccupied’ with other matters when he gave testimony to the grand jury—is a transparent effort at ‘greymail.’” (Corn 2/17/2006)

The Lewis Libby defense team files a rejoinder to the special counsel’s request that the team not be granted access to classified White House documents (see February 16, 2006). Libby’s lawyers call the request “entirely unconvincing” and based on “phantom concerns” over executive privilege, “graymail” (see After October 28, 2005, January 31, 2006, February 6, 2006, and (February 16, 2006)), and “illusory grand jury secrecy interests.” The motion requests that all documents previously requested be provided to the defense by the special counsel. (US District Court for the District of Columbia 2/21/2006 pdf file; Sampson 2/22/2006) “Denying Mr. Libby’s requests because they pertain to ‘extraordinarily sensitive’ documents would have the effect of penalizing Mr. Libby for serving in a position that required him to address urgent national security matters every day,” Libby’s lawyers write. Responding to the accusations of “graymail,” they write, “The government’s ‘greymail’ accusation is not only false, but insulting.” (Yost 2/22/2006) One of Libby’s lawyers, Theodore Wells, files a separate affidavit in support of the team’s motion. (US District Court for the District of Columbia 2/21/2006 pdf file)

Judge Reggie Walton issues an order significantly curtailing the Lewis Libby defense team’s requests for highly classified White House materials (see After October 28, 2005, January 31, 2006, February 6, 2006, (February 16, 2006), and February 21, 2006). Walton’s orders indicate that he may accept the defense team’s requests for some, but not all, of the highly classified Presidential Daily Briefings (PDBs), requests that have become a source of conflict between the defense and the prosecution. “Upon closer reflection, it is becoming apparent to this court that what is possibly material to the defendant’s ability to develop his defense” is not every detail from the briefings that Libby received as Cheney’s national security adviser, Walton says. The defense says it needs the PDBs to establish how busy Libby was with national security matters and therefore bolster their expected defense of Libby’s failure to remember his conversations about outed CIA official Valerie Plame Wilson when he allegedly lied to the FBI and to the grand jury (Libby’s so-called “memory defense”—see October 14, 2003, November 26, 2003, March 5, 2004, March 24, 2004, and January 31, 2006). General descriptions of the briefings from specific time periods might be sufficient, Walton continues. Walton also asks the CIA to tell him what, if any, documents the Libby team has requested from it might be available. Washington attorney Lawrence Barcella says Walton’s efforts would hamper Libby’s defense strategy. “What makes the defense so viable is for him to show the enormity of what he dealt with on a daily basis,” Barcella says. “If you sanitize it just so you can get past the classified information issue, you significantly lessen the potential impact of it.” (Locy 2/27/2006; US District Court for the District of Columbia 2/27/2006 pdf file) Criminal defense attorney Jeralyn Merritt, writing for the progressive blog TalkLeft, states: “I think Libby has boxed himself in on his memory defense. He now has a huge burden to show that he was so preoccupied with other matters on six or seven different occasions that he couldn’t accurately remember what he told or was told by [reporters Judith] Miller, [Matthew] Cooper, and [Tim] Russert. It’s almost like using the space cadet defense many drug defendants offer, rarely sucessfully.” (Jeralyn Merritt 2/27/2006)

Special counsel Patrick Fitzgerald files a motion with the court in the Lewis Libby perjury trial to deny the Libby team’s request for a wide array of documents (see February 27, 2006). Almost all of the filing is redacted before its release to the public, but it apparently specifies the documents Fitzgerald is opposed to collecting and releasing. (US District Court for the District of Columbia 3/1/2009 pdf file)

The CIA refuses to release a raft of classified agency documents requested by the Lewis Libby defense team (see January 31, 2006 and February 27, 2006). Meeting the Libby team’s request, CIA spokeswoman Marilyn Dorn says in a court filing, would “impose an enormous burden” and divert CIA analysts from more important tasks. To compile and provide those documents, Dorn says, would take around nine months. Libby’s lawyers say the CIA is exaggerating the difficulty of finding and releasing the documents, calling the argument “astonishing,” but also scale back their requests in hopes that Judge Reggie Walton will compel the agency to comply with the document demands. Some of the information originally requested includes CIA copies of the Presidential Daily Briefings (PDBs) from an 11-month period in 2003 and 2004. Special counsel Patrick Fitzgerald has accused the Libby team of engaging in “graymail” (see (February 16, 2006)), demanding unobtainable classified government documents in order to shut down the prosecution. Libby’s team has called that accusation “not only false but insulting” (see February 6, 2006). Libby’s lawyers now say they will be satisfied with the PDBs provided to Vice President Dick Cheney. (US District Court for the District of Columbia 3/2/2006 pdf file; US District Court for the District of Columbia 3/7/2006 pdf file; Smith 3/8/2006)

Lewis Libby’s lawyers file a supplemental brief extending and reiterating their arguments in favor of compelling the CIA, the White House, and other government agencies to submit a vast array of classified documents for Libby’s defense (see December 14, 2005, January 9, 2006, January 23, 2006, January 31, 2006, (February 16, 2006), February 21, 2006, February 24, 2006, February 27, 2006, March 1, 2006, March 2-7, 2006, March 10, 2006, March 17, 2006, and April 5, 2006). The defense indicates it intends to call as witnesses the following government officials: former CIA spokesman Bill Harlow, former Deputy Secretary of State Richard Armitage, former Secretary of State Colin Powell, National Security Adviser Stephen Hadley, White House deputy chief of staff Karl Rove, former ambassador Joseph Wilson, and former CIA official Valerie Plame Wilson. To fairly prepare for their testimonies, the defense argues, it must be supplied with all pertinent documents, classified or not, relating to their involvement in the leak of Plame Wilson’s identity, Plame Wilson’s covert status, the White House’s efforts to bolster its arguments for the Iraq invasion, and the White House’s attempts to discredit Wilson as a believable critic of its policies. (US District Court for the District of Columbia 5/12/2006 pdf file)

Judge Reggie Walton issues a court order that withholds certain “extremely sensitive” classified documents from the Lewis Libby defense team. Walton writes that he “carefully reviewed” the requests from special counsel Patrick Fitzgerald and from the CIA to withhold the documents. The documents were provided to him ex parte and in camera, and Walton determined that they were irrelevant to the Libby defense efforts. Walton writes that the documents are “extremely sensitive and their disclosure could cause serious if not grave damage to the national security of the United States.” Walton has previously allowed other classified documents to be provided to Libby, and the CIA has provided documents requested by Libby that Walton has released to the defense (see December 14, 2005, January 9, 2006, January 20, 2006, January 23, 2006, January 23, 2006, January 31, 2006, (February 16, 2006), February 21, 2006, February 24, 2006. February 27, 2006, March 1, 2006, March 2-7, 2006, March 10, 2006, March 17, 2006, April 5, 2006, May 3, 2006, May 12, 2006, May 19, 2006, and June 2, 2006). Many of the documents provided to Libby are redacted versions or summaries of the classified documents he viewed during his morning intelligence briefings. (Seidman 8/18/2006) Former prosecutor Christy Hardin Smith, writing for the progressive blog FireDogLake, writes of Walton’s decision: “That there is material so sensitive in this case that Libby is not entitled to it at all… speaks volumes to me in terms of what was endangered by him and Karl Rove opening their yaps in order to exact some political payback and CYA for Dick Cheney and the Bush administration. Putting personal political fortune ahead of the security of the entire United States during a time of armed conflict to cover your bosses’ *sses for lying the nation into war? Now THAT is unpatriotic.” (Christy Hardin Smith 8/19/2006)

Judge Reggie Walton issues an order on the use of classified evidence in the Lewis Libby perjury and obstruction trial (see December 14, 2005, January 9, 2006, January 23, 2006, January 31, 2006, (February 16, 2006), February 21, 2006, February 24, 2006, February 27, 2006, March 1, 2006, March 2-7, 2006, March 10, 2006, March 17, 2006, April 5, 2006, May 12, 2006, May 19, 2006, June 2, 2006, and August 18, 2006). The order is largely procedural, acknowledging the deep divisions between the prosecution and the defense on the issue, and concluding “that the Federal Rules of Evidence and the restrictions they impose control whether information subject to CIPA [Classified Information Procedures Act] proceedings is admissible during a trial.” The order indicates that Walton is inclined to find at least somewhat in favor of the defense and may order many of the classified materials requested by the Libby defense team to be presented as evidence, leading the Associated Press to report “a victory to the defense” in the ruling. Walton also reminds prosecutor Patrick Fitzgerald that if his concerns about a possible breach of national security are that strong, he is free to stop the disclosure of classified information by dropping the charges against Libby (see After October 28, 2005, January 31, 2006, February 6, 2006, (February 16, 2006), and September 27, 2006). (US District Court for the District of Columbia 9/21/2006 pdf file; Seidman 9/21/2006; Apuzzo 9/21/2006)

Special counsel Patrick Fitzgerald files a status report in regards to defense requests for a wide array of classified documents and materials to be made available for the Libby trial (see December 14, 2005, January 9, 2006, January 23, 2006, January 31, 2006, (February 16, 2006), February 21, 2006, February 24, 2006, February 27, 2006, March 1, 2006, March 2-7, 2006, March 10, 2006, March 17, 2006, April 5, 2006, May 12, 2006, May 19, 2006, June 2, 2006, August 18, 2006, September 21, 2006, and September 22, 2006). Fitzgerald’s report indicates that he has presented the defense with redacted versions of many of the documents the lawyers have requested, and that he expects the defense to challenge some of the redactions. (US District Court for the District of Columbia 10/18/2006 pdf file)

Judge Reggie Walton rules that the substitutions and summaries of classified materials special counsel Patrick Fitzgerald has proposed to be provided to the Lewis Libby defense team are inadequate. Libby has asked for a raft of classified materials (see December 14, 2005, January 9, 2006, January 20, 2006, January 23, 2006, January 23, 2006, January 31, 2006, (February 16, 2006), February 21, 2006, February 24, 2006, February 27, 2006, March 1, 2006, March 2-7, 2006, March 10, 2006, March 17, 2006, April 5, 2006, May 3, 2006, May 12, 2006, May 19, 2006, June 2, 2006, August 18, 2006, September 21, 2006, and September 22, 2006) to support his contention that he was so overwhelmed by work at the White House that his lies about his conversations with reporters concerning CIA official Valerie Plame Wilson (see June 23, 2003, 8:30 a.m. July 8, 2003, 2:24 p.m. July 12, 2003, Late Afternoon, July 12, 2003, and July 10 or 11, 2003) were “inadvertent and not the product of willful disinformation.” Observers are terming this Libby’s “memory defense” (see January 31, 2006). However, Walton rules that Libby will not have “free reign” to use whatever classified documents he or his lawyers see fit: his ruling “does not give the defendant ‘free reign’ over his testimony.” Walton writes, “He is alleging both that the volume of his work would have impacted his memory and that some of the information presented to him as the vice president’s national security adviser was so potentially catastrophic to the well-being of the country that the focus he had to devote to this information also impacted his memory.” Many observers, including Fitzgerald, believe Libby may be attempting to derail the prosecution by threatening to reveal sensitive national security details during his trial, a practice called “graymail” (see After October 28, 2005, January 31, 2006, February 6, 2006, and (February 16, 2006)). (Seidman 11/13/2006)


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