Libby's graymail gambit

Dismissal of case
Walton addressed the issue head-on last week, saying if Fitzgerald feels that admitting certain classified documents at the upcoming trial can threaten national security, he can then move to dismiss the charges against Libby.

The judge wrote, "if the government is still not satisfied that the classified information is adequately protected at the conclusion of these hearings, the government has the power to preclude entirely the introduction at trial of the classified information. While invocation of this option may require dismissal of this case."

Libby's attorney's will argue this week that, "Mr. Libby must be able to discuss classified information to give the jury an accurate picture of his state of mind during the relevant time period and to show the jury that any errors he made in his statements and testimony were the product of confusion, mistake and faulty memory rather than deliberate misrepresentations."

FBI agents interviewed Libby nearly three-years ago, when they were called in to investigate claims that someone in the White House leaked Plame's identity to the media that summer in retaliation against Wilson, who wrote in a July 6, 2003 New York Times op-ed, that the administration "twisted" the facts about their claims that Iraq was in hot pursuit of Niger's fissile yellowcake. Those claims embarrassed the administration when they were included in the infamous "16 words" in the President's State of the Union address.

No charges for leaking ID
When questioned about his knowledge of the leak, Libby allegedly lied about how and when he learned of Plame's CIA status, and with whom he discussed the classified information. Given the very frenetic nature of his job as the vice president's chief of staff, Libby's lawyers have said, it's understandable that their client might have misremembered, "snippets of conversation" which Libby felt were simply not important.

But, even if he did talk to reporters about Plame, attorneys for Libby argue, he had no motive to lie about it later because he didn't know her status was classified and therefore was unaware he had done anything wrong.

Fitzgerald did not charge anyone with violating the law that makes it a crime to  knowingly disclose the identity of a covert CIA agent.

Armitage effect
Former Deputy Secretary of State Richard Armitage acknowledged recently that he revealed Plame's job to syndicated columnist Robert Novak and Washington Post reporter Bob Woodward but said it was inadvertent.

Fitzgerald has said in court filings that the Plame leak from Libby was orchestrated specifically to undermine the credibility of Wilson's public pronouncements -- which Fitzgerald says consumed the vice president's office for several weeks in the summer of 2003 -- after Wilson's op-ed was published.

The special counsel revealed in court filings Cheney's handwritten notes at the margins, and underscores within, a newspaper clipping of Wilson's article, which the prosecutor says show the harsh reaction the Vice President had to Wilson's assertions in it about U.S. intelligence on Iraq's weapons of mass destruction.

The notes by Cheney seemingly question the CIA's motivation for sending Wilson on the fact finding trip to Niger. Cheney writes, "Have they done this = sort of thing before?  Send an Ambr (ambassador) to answer a question? Do we ordinarily send people out pro bono to work for us? Or did his wife send him on a junket?"

Iraq war debate
Libby's lawyers also want to use classified records related to Wilson's trip to Niger, the use of which Judge Walton has openly questioned in court. Walton has said he would not permit his court to become a forum for debating the accuracy of Wilson's statements in a New York Times Op-Ed, or the propriety of the Iraq war and matters leading up to the war.  The judge wrote, "at best, these events have merely an abstract relationship to the charged offenses."

But Libby attorney's say that the documents generated by the CIA about the Niger trip and faxed to Libby at the White House were used when he "was talking to a reporter...about the Wilson trip."

Fitzgerald seems to agree in part. In his filing this week, the special counsel writes, "documents related to the Wilson controversy may, on a document-by-document basis, be admitted."  But he says, they must satisfy certain criteria on hearsay, or be admitted for a limited purpose.

Libby's trial is still four months away, jury selection is scheduled to begin on January 17th.

Joel Seidman is an NBC News producer based in Washington.

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