Pardon Me, Mr. President! Libby’s Difficult Defense

052906 article asm Pardon Me, Mr. President!  Libby’s Difficult DefenseHours after I. Lewis Libby resigned from the White House last October, federal prosecutor Patrick Fitzgerald broke the seal on an indictment charging him with five felonies.

Now, as the pre-trial jousting in Mr. Libby’s case picks up momentum, the onetime loyal West Wing confidant—Dick Cheney’s Dick Cheney—will have to choose between protecting himself and protecting the White House. Specifically, insiders say, he will have to choose between a not-guilty verdict and a Presidential pardon.

“It does put him in this difficult situation of putting the administration on trial,” said a lawyer in the case. “Things are coming out that would never have come out, solely because he’s going to fight the charges.”

As Mr. Libby’s lawyers serve demand after demand for evidence that they hope will exculpate their client, special counsel Patrick Fitzgerald rallies back with briefs seeded with less-than-flattering assertions about Mr. Libby’s bosses.

Responding to Mr. Libby’s lawyers in a May 12 filing, for example, Mr. Fitzgerald included what many considered to be a shocking and revealing document: a copy of The New York Times Op-Ed column “What I Didn’t Find in Africa,” written by former ambassador Joseph C. Wilson and calling into question some of the Bush administration’s claims regarding Iraq’s nuclear-weapons program, annotated in Mr. Cheney’s script with the question: “[D]id his wife send him on a junket?”

On Friday, Mr. Libby’s lawyers filed a response with the court, saying their client hadn’t seen the clipping until the F.B.I. showed him a copy—an argument that served to distance himself from the Vice President, if not exactly contradicting him.

But more importantly, this exhibit painted a picture of a Vice President angered by the column, and with clear knowledge of the relationship between Mr. Wilson, his wife and the circumstances of his trip to Niger.

This is the second time that Mr. Libby’s lawyers have been slapped in the face with information that they themselves requested to aid in his defense.

In a letter in January, and then in a filing with more detail last month, Mr. Fitzgerald reported that the President allowed Mr. Cheney to authorize selective leaking of a classified National Intelligence Estimate report to counter administration critics on Iraq. The leak prompted outrage from Democrats, who saw a contradiction in Mr. Bush’s insistence that leaks were indefensible, and led Representative Jane Harman to crown him the “leaker-in-chief.”

“In defending himself, he’s already had to reveal the degree to which the Vice President, the President and others have approved and/or directed the leaking of what might be classified information,” said a defense lawyer who has handled government clients. It’s “exposed the inner workings of what they may have preferred to keep private. His defense keeps the spotlight on the workings of the White House, which have proved to be sometimes embarrassing.”

As in many discovery processes, the prosecutor wants to minimize the amount of material provided to the defense, and the defense wants to maximize their haul.

“Fitzgerald puts this stuff out to raise the cost to Libby, because he knows Libby doesn’t want this stuff out there,” suggested one lawyer familiar with the investigation. “Every time Libby punishes him on discovery, he’ll punish the guy that Libby lied to protect …. There’s certainly tension, and [Fitzgerald] obviously perceives that pushing on this stuff is going to cause [Libby] a great deal of pain.”

Others rejected that theory. “Fitzgerald is the straightest-shooting prosecutor in the country. He’s not playing any kind of game or retaliating. He’s just showing the court what he needs,” said a lawyer familiar with the case. A spokesman for Mr. Fitzgerald, Randall Samborn, declined to respond.

One former administration official downplayed the significance of Mr. Fitzgerald’s findings.

“Would they rather not have had to deal with it? Sure. Did it flip everybody’s views on Scooter? Probably not.” And, in fact, many of the Republican faithful—including former Cheney advisor Mary Matalin—have joined the advisory committee of the Libby Legal Defense Trust in a show of support. Of course, many others have not.

“From the administration’s view, the not-flattering stuff tends to be the not-flattering debates that already happened,” said the official.

Mr. Libby discussed portions of the National Intelligence Estimate used to make the case for the Iraq war, and whose credibility has since been seriously undermined.

“Why you get defensive on it is that it highlights that subsequent events have proven that to be an inaccurate assessment,” the official added.

In a key document request in March, the defense wrote: “The actions of government officials from the White House, the State Department and the CIA—and the documents they generated—are part and parcel of this story.”

Telling that story is their job. Keeping that story under wraps is the White House’s.

Mr. Libby’s sprawling legal-defense team—which includes lawyers from Paul, Weiss, Rifkind, Wharton & Garrison in New York; Baker Botts in Washington, D.C.; Jones Day in California; and Dechert in Philadelphia—declined to comment on how Mr. Libby’s loyalty to the administration has shaped his defense strategy.

(Last month, D.C. District Court Judge Reggie Walton threatened to issue a gag order to lawyers in the case after reporters were informed of a filing in the case before it was filed with the court.)

Mr. Libby is accused of obstructing justice, making false statements and perjury coming out of his testimony in an investigation into the possibly illegal disclosure of a C.I.A. operative’s identity. The charges are based on alleged contradictions between statements Mr. Libby made to the F.B.I. and a grand jury and his conversations with reporters in the summer of 2003.

Based on the court’s filings and conversations with lawyers familiar with the case, Mr. Libby’s team appears to be conducting a broad and vigorous defense.

Their basic claim is that Mr. Libby was so busy he lost track of whom he talked to, which helps to explain why he didn’t remember where he had learned of Valerie Plame, the C.I.A. operative whose leaked identity is at the center of the present inquiry, nor whom he talked to about her.

So they’ve requested an avalanche of information that would seem to convey exactly what that was like—among them the President’s daily intelligence briefings, as well as notes and drafts of stories from reporters. They’ve argued that Ms. Plame’s C.I.A. affiliation was not a closely held secret, and questioned the authority of Mr. Fitzgerald to bring his charges.

Lawyers said that the goal seemed to be to offer enough diversions from the narrow questions of who originally told Mr. Libby that Ms. Plame was a C.I.A. operative, and what his state of mind was when he talked to F.B.I. agents and the grand jury before his indictment.

They described it as a typical defense strategy of providing a broad and sometimes confusing story in place of the prosecutor’s focused and narrow one.

“I’m not hearing that the basic charges are false with the discussion that’s been going on in the court papers,” said a lawyer familiar with the case.

But if the facts of the case are not in question, Mr. Libby has nevertheless pleaded not guilty. So his defense must rest in the interpretation of those facts, and the environment in which these facts emerged.

The tension between a defendant and his or her employer—whether in the case of a C.E.O. and a company or a Congressional staffer and a Congressional office—always exists, argued Abbe Lowell, a prominent D.C. defense attorney. “What’s uncommon is that it’s one of the highest-ranking government officials’ highest-ranking deputy,” he said.

One obvious tactic for defendants is to argue that they were simply executing orders. Yet Mr. Libby’s team is taking a more nuanced approach, trying to strike a balance between painting a portrait of Mr. Libby as charged with massive responsibilities in his role as Mr. Cheney’s deputy, and not pointing the finger at his boss. In other words, a consistent defense that is still not embarrassing to the White House.

Lawyers said it was impossible to know whether there were lines of inquiry that the defense was not pursuing at the behest of Mr. Libby.

“There are some times people might go down and say, ‘I’m not going to raise this, I’m not going to do this’—friendship, family, employers, it could be a whole host of facts that could enter into a decision,” explained a lawyer with a small involvement in the case.

But some with experience in these types of fraught situations said that while clients will typically comply with their lawyers’ suggestions, sometimes that resolution is hard-won.

“There is a real tension there, because you’re doing your utmost to defend your client, who has extreme loyalty,” said a Washington lawyer familiar with independent-counsel investigations. “It takes a lot of convincing with a client to let you do your job to complete the defense.”

The lawyer added: “It’s going to be very, very difficult to get Libby to point the finger to one or two above him—if that, in fact, occurred.”

But in a move that seemed to favor Mr. Libby’s White House associates, his lawyers seemed quite willing to finger the leaker. In a hearing held to debate subpoenas issued to reporters and media outlets, William Jeffress, one of Mr. Libby’s lead attorneys, strongly hinted that at an alibi source for former New York Times reporter Judy Miller, and possibly for Robert Novak and Bob Woodward (two of the other journalists embroiled in the case) as well: someone “maybe [in the] State Department.”

“Your honor, we respectfully would submit that we think the source for Mr. Novak and Mr. Woodward, who wasn’t even in the White House—we think the fact that what he knew, which is certainly as much or more than Mr. Libby knew about Ms. Wilson, convinced him that there was nothing wrong with disclosing her name to a reporter. That she was not covert. She was not classified.”

For observers, this raises questions about whether the defense strategy is designed to get Mr. Libby off, or to try to get gratitude from the administration.

“I just don’t think that folks in the administration are saying that Libby should fall on his sword so as not to embarrass people,” said a lawyer familiar with the investigation. “He crossed that bridge when he decided to defend the case.”