Attorneys for Mr. Libby have asked that the prosecution be precluded from arguing at trial that Mr. Libby acted improperly or illegally when he discussed a National Intelligence Estimate on Iraq with the press. The issue ties into the criminal case because in some of the conversations about the estimate, Mr. Libby is alleged to have mentioned Ms. Plame or answered a question about her.
In April, The New York Sun first reported that Mr. Libby said he disclosed the intelligence report on Iraq at the direction of Mr. Cheney, who said he had obtained the permission of Mr. Bush to release the findings of the closely held document.
In court papers filed Wednesday, Mr. Fitzgerald reaffirmed that he does not plan to argue that Mr. Libby was wrong to disclose the report's conclusions to journalists. However, the prosecutor said he wants the ability to attack Mr. Libby's credibility if he or his lawyers argue that all his disclosures from the Iraq report were clearly authorized by his superiors. "The timing of the declassification relative to defendant's disclosure of the NIE to reporters is unclear," Mr. Fitzgerald wrote, urging Judge Reggie Walton to reject the defense proposal. "The government should not be muzzled from raising any questions about the declassification's timing."
According to the prosecutor, Mr. Libby testified initially that he was told of the declassification just prior to a July 8, 2003, meeting he had with Judith Miller of the New York Times. However, Mr. Fitzgerald said Mr. Libby "was unsure" whether the declassification took place prior to meetings he had with a Washington Post reporter, Bob Woodward, on June 27 of that year, and with another Times journalist, David Sanger, on July 2.
"Defendant testified that he recalled a ‘go-stop-go' sequence in discussions concerning authorization to disclose the NIE, that is, he was authorized to disclose, then he was instructed to hold off, and then later told again to disclose," Mr. Fitzgerald wrote. He also said Mr. Libby testified that he may have "slipped" in discussing with Mr. Sanger the report's conclusion that Iraq was "vigorously trying to procure" uranium.
"The government simply wishes to make clear that it cannot affirmatively agree that each time defendant disclosed the NIE, he was authorized to do so," Mr. Fitzgerald said.
This ruling is madly significant to the arcane edifice constructed by The EmptyWheel, a link to which I don't have just now [but here is a summary, or plenty of detail here]. However, IIRC, a key part of her construction hinges on the timing of Libby's NIE disclosures vis a vis various Cheney exhortations, so for our friends on the left it is fantasy-critical that Fitzgerald pursue this line of inquiry.
Fitzgerald's filing suggests he is following a different tack - Libby's July 8 conversation with Judy Miller must have been memorable because the circumstances of the declassification of the NIE were memorable:
As discussed below, the government has no intention, and has never expressed an intention, of arguing that defendant’s disclosure of the previously-classified October 2002 NIE was illegal or improper. What the government does intend to establish is that the circumstances surrounding the disclosure – including the fact that the information disclosed was specially de-classified by the President, through the Vice President, and the fact that the Vice President specifically authorized disclosure of the information to a reporter – made the conversation in which the disclosure was made unique and memorable to defendant. That conversation was a meeting with New York Times reporter Judith Miller at St. Regis Hotel on July 8, 2003, in which defendant and Ms. Miller also discussed the fact that Valerie Wilson worked at the CIA as part of his response to criticisms of the White House’s assertions regarding purported Iraqi efforts to acquire uranium from Niger. Thus, rather than “fleeting” and “inconsequential,” the conversation between defendant and Miller was unique and memorable – but not illegal.
That said, this tibit from page 5 is interesting:
The government does not know what position the defense will advance at trial as to the timing of the relevant discussions authorizing the NIE’s disclosure, and the timing issue may be important because defendant did ask the Counsel to the Vice President, some time after July 6, questions about what paperwork would be involved when the spouse of a CIA employee traveled abroad (a reference to Ms. Wilson and to Mr. Wilson’s trip to Niger), together with a question about the President’s de-classification authority.
The paperwork issue clearly relates to the query Cheney jotted (p. 3 of 28) in his copy of Wilson's July 6 NY Times op-ed. Well - if Libby asked Addington about the junket and the declassification at the same time, one might infer that Wilson's "junket" came up in a conversation with Dick Cheney following the Wilson op-ed but prior to July 10, when Libby talked to Russert.
Libby's version is that he remembered the declassification question but not the junket. Good luck.