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Scooter Libby's Graymail | The Nation

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Capital Games

 Washington: a city of denials, spin, and political calculations. The Nation's former DC editor David Corn spent 2002-2007 blogging on the policies, personalities and lies that spew out of the nation's capital. The complete archive appears below. Corn is now the DC editor at Mother Jones.

Scooter Libby's Graymail

I just posted this at www.davidcorn.com....

Last week, I suggested that Scooter Libby might be trying to orchestrate a "graymail" defense--which is based on the implied threat of blowing national security secrets. That's being a patriot, right? It seems that special counsel Patrick Fitzgerald believes this is what Libby is up to. In a filing Fitzgerald submitted to the court this week (which was released today), Fitzgerald opposed Libby's demand that Fitzgerald somehow force the CIA and White House to release classified information that is tangential to Libby's defense against the charge he lied too FBI agents and Fitzgerald's grand jury. Here's an excerpt from Fitzgerald's filing:

Libby requests copies of all Presidential Daily Briefs ("PDBs"), as well as all documents provided to Mr. Libby or the Vice President in connection with such briefings (or in response to any questions Mr Libby asked) for a period of nearly eleven months. The PDB is provided to the President and Vice President each day of the week other than Sunday. While employed at the White House, Libby was provided the PDB (in addition to supplemental materials provided to him and the Vice President) six days per week, sometimes in the presence of the Vice President.

The defendant's request to compel the production of approximately 277 PDBs from May 6, 2003 through March 24, 2004 to establish his "preoccupation defense" is nothing short of breathtaking. As the defendant well knows, the PDB is an extraordinarily sensitive document which implicates very serious concerns about both classified information and executive privilege. When President Bush declassified and made available a portion of the August 6, 2001, PDB discussing Usama Bin Laden in conjunction with the work of the National Commission on Terrorist Attacks Upon the United States, more commonly known as the "9/11 Commission," it apparently marked the first time that a sitting President has made a PDB publicly available.

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." A similar effort was rejected in George where a former CIA Deputy Director of Operations tried to grant himself de facto immunity by demanding access to materials so sensitive as to preclude prosecution if disclosure were required.

Fitzgerald 32-page response whacks Libby's request in other ways. It's quite a smack-down. Fitzgerald continues to insist this is a simple case: did Libby lie to FBI agents and his grand jury. Libby is trying to drag other issues into the picture--what damage was done by the Plame leak, what top-secret stuff he was working on at the time of the leak, whether Dick Cheney authorized him to leak intelligence information, and so on. Any bets on how ugly this might get? Or is Libby's legal posse just blowing smoke at the outset?

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