Libby's graymail gambit

WASHINGTON - In what is stacking up to be one of the most decisive pre-trial hearings in the CIA leak case against I. Lewis "Scooter" Libby, the parties involved will face off Wednesday to argue which -- if any -- classified documents Libby will be allowed to use in his defense against charges of perjury and obstruction of justice.

Libby's legal gambit -- threatening to reveal sensitive national security details when the trial begins in January -- has the potential to derail the proceedings.

Attorneys for Vice President Cheney's former top aide and for special counsel Patrick Fitzgerald will meet before Judge Reggie Walton on Wednesday in the first of several closed hearings dealing with classified documents. Judge Walton will decide the use, relevance or admissibility of the classified information.

Libby has said he will take the stand and tell jurors he never lied to investigators or to a grand jury in the leak case. Libby faces five counts of perjury, making false statements and obstruction of justice.

Leveraging classified information
Fitzgerald wants to limit the use of secret documents -- believing that extensive use of classified materials at trial may jeopardize national security and sink his case.

It is a legal tactic called "graymail" — when a defendant threatens to reveal classified information during a trial in hopes of forcing the government to drop criminal charges. Fitzgerald may propose allowing only a redacted version of a classified document as a substitution for the original, having deleted only non-relevant classified information.

The special counsel, in a prelude to Wednesday's legal battle, said in a court filing Libby's notes may be admitted.  "As a general rule, entries in defendant's notes may often qualify as present sense impressions," Fitzgerald wrote. He wrote, however, that the Presidential Daily Briefs (PDPs) should not be allowed to be used at trial. "There is no doubt that they are compilations of information received from multiple sources, some of whom are outside the United States government, and may even be trying to deceive the government," the prosecutor opines.

'Family jewels' of government
But in order to make his case to a jury, Libby argues that he must rely on the daily morning briefings he and Cheney received from the CIA -- briefings which are classified. Those briefings, and the so-called Terrorist Threat Matrix, other classified information and his own notes, Libby says, are vitally needed to convince jurors that he had much more important things on his plate during a crucial time period in the summer of 2003.

Libby also wants to say that he did not remember his discussions with three reporters about Valerie Plame Wilson, the wife of former Amb. Joseph Wilson. Plame was a CIA officer at the time.

In past court filings, Fitzgerald quoted Cheney as describing those morning briefings as the "family jewels" of government.  "The defendant's effort to make history ... is a transparent effort at 'graymail'," Fitzgerald said, referring to past attempts by government officials charged with wrongdoing to derail their prosecutions by trying to expose national security secrets.

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