Will Scooter Libby, a neocon who helped orchestrate the war in Iraq, end up graymailing the US government?

That seems to be one of the strategies being considered by the lawyers defending Dick Cheney’s former chief of staff, who was indicted by special counsel Patrick Fitzgerald in the CIA leak case for lying to FBI investigators and grand jurors to cover up his (and possibly Cheney’s) participation in the outing of CIA officer Valerie Wilson (née Plame).

Graymail is a defense gambit not available to most criminal suspects. But years 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. Isn’t that the act of a patriot?

Judges tend to dislike graymailers and shoot them down whenever possible. Still, Libby seems close to making this sort of push. Last week, his attorneys asked for access to ten months’ worth of the President’s Daily Brief, the highly classified report the President receives each morning from the CIA. (The Bush White House is ferociously possessive about PDBs and has refused to hand them over to Congressional investigations.) Libby’s lawyers say that Libby “was immersed throughout the relevant period in urgent and sensitive matters, some literally matters of life and death” and that because of his involvement in “the constant rush of more pressing matters, any errors he made in his FBI interviews or grand jury testimony” were unintentional slips. Libby, a lawyer himself, has to realize that (a) Fitzgerald does not have it within his power to provide the requested PDBs and (b) the overly secretive, presidential-prerogative-is-us White House in which Libby served will never cough up nearly a year of PDBs. But in a display of chutzpah, Libby’s attorneys said that Fitzgerald should obtain copies of the PDB from the CIA and Cheney’s office and then turn them over to Libby’s lawyers.


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Libby’s defense team also requested information proving that Valerie Wilson was a classified CIA employee (asserting that the classified nature of her employment at the CIA has not yet been established), and they demanded any CIA damage assessment of the Plame leak. A damage assessment is not the sort of material the agency would supply without a titanic fight. A damage assessment would presumably cover operations and activities the CIA does not want damaged any further by additional disclosure.

These requests seem part of a try-everything defense. How effective will it be for Libby to argue, I didn’t tell the truth because I was really busy with affairs of state? (Perhaps Libby is trying to blaze a legal trail for others.) After all, according to Fitzgerald’s indictment of Libby, he did not merely get the facts wrong once or twice. It happened in the course of several different interviews–during which Libby consistently told the same (cover?) story: He did not know that Valerie Wilson worked at the CIA until reporters told him, and then he merely passed along this unconfirmed gossip to other reporters. Fitzgerald’s indictment cites several instances in which Libby obtained or sought information on Valerie Wilson through official channels before he spoke to reporters about her. And the damage assessment issue is no slam-dunk for the defense. Can Libby’s defense be that if there was not much damage, then it was okay for him to make false statements purposefully to the FBI and the grand jury?

But Libby may not stop at PDBs, the CIA damage assessment and information pertaining to Valerie Wilson. His lawyer said they might seek other classified records from the State Department, the National Security Council and the Office of the President. And last week, Ted Wells, one of Libby’s attorneys, said that “thousands and thousands and thousands” of pages of evidence have been withheld by Fitzgerald. The special counsel disagreed. By the way, Fitzgerald recently sent a letter to Libby’s defense team noting, “In an abundance of caution, we advise you that we have learned that not all e-mail of the Office of the Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.” Hmmmm. The White House has lost chunks of e-mail from Cheney’s and Bush’s offices for 2003, the year Bush invaded Iraq, the year of the CIA leak. Must just be an accident, right?

Meanwhile, on other fronts, Libby and the White House received good news and bad news. Libby and GOPers had reason to be pleased when Judge Reggie Walton set a trial date for next January–which would push the trial of Cheney’s former chief of staff beyond the Congressional elections. Walton had originally wanted the trial–which could include the spectacle of Dick Cheney taking the stand–in September, but Libby’s team asked to push it back, claiming one of his attorneys had a scheduling conflict. (Other good news for Libby and his legal warriors: A Libby defense fund, chaired by Mel Sembler, a former finance chairman of the Republican Party, has raised $2 million for Libby’s legal bills. Members of the fund’s steering committee include former GOP Senators Fred Thompson and Alan Simpson, former CIA director R. James Woolsey and former Middle East envoy Dennis Ross.)

The bad news for Libby and Republicans was the release of previously withheld court records that indicate the case against Libby may be stronger than Fitzgerald’s indictment suggested. These records, referring to grand jury testimony, reveal more details of Libby’s alleged lying to investigators and a grand jury. They also suggest that Cheney may play a significant role in the trial. In his grand jury testimony, Libby said that when news accounts of former Ambassador Joseph Wilson’s trip to Niger first emerged, it was Cheney who told Libby “in an off sort of curiosity sort of fashion” that Wilson’s wife worked at the CIA’s Counterproliferation Division, which is part of the agency’s clandestine service. Libby’s use of this clumsy term–an off sort of curiosity sort of fashion–is intriguing. Is it credible that when Cheney was talking to his chief of staff about a fellow who was telling reporters he could prove the Bush Administration had misled the nation about the case for war in Iraq that Cheney would do so in an offhand manner?

These newly released records disclose that former Bush press secretary Ari Fleischer told Fitzgerald’s grand jury that he had a lunch with Libby during which Libby told him that Wilson’s wife did counterproliferation work at the CIA and that this information was “hush-hush.” Fleischer described the lunch as “kind of weird.” Usually, Libby “operated in a very closed-lip fashion,” Fleischer said. But in this instance, it seems, he was trying to spread information that could be used against a White House critic.

The court records also show that Fitzgerald–despite what Libby’s attorneys have claimed–have already demonstrated to the courts overseeing the case that Valerie Wilson was an undercover CIA officer. In a filing to the court, Fitzgerald reported that Valerie Wilson is “a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years.”

Libby is certainly not doing all he can to help Fitzgerald get to the bottom of the leak case, as Bush once ordered all White House aides to do. In fact, Libby is fighting back, as is his right, as hard as he can, and his friends are supportive–and perhaps grateful. After all, Libby is not rolling over on Cheney, Rove or anyone else. No wonder he was a welcomed guest at Cheney’s Christmas party in December.