Fleischer: Libby discussed CIA officer at lunch

'I was absolutely horrified'
After columnist Bob Novak's publicly identified CIA operative Valerie Plame - and after the CIA made a "criminal referral" asking the Justice department to launch a criminal investigation into the disclosure of Plame's identity - Fleischer said he saw the news while he was at home with his parents.  Fleischer said he saw a story about the criminal referral and then went on-line and read a larger story on the Washington Post web site.

Asked what he was feeling at the moment, Fleischer testified, "I was absolutely horrified.  I said to myself, ‘Oh, my God, did I play a role in somehow outing a CIA operative... did I just do something that I could be in big trouble for.’"

Fleischer said he did not believe he had done anything criminal, but wasn't sure how his actions would be viewed.  So, his next step, he said, "was to get counsel."

Fleischer's lawyers urged him to assert his 5th amendment rights during the criminal investigation.  Fleischer did, was given immunity, and then testified to the Grand Jury.

Fleischer testified under an immunity deal with prosecutors and arrived in court with his attorneys. He sought the deal because he discussed Plame with reporters. Libby's attorneys plan to argue during cross-examination that the immunity deal makes Fleischer's testimony less credible.

Prosecutor Peter Zeidenberg sought to head off that argument early in Fleischer's testimony by having him describe his deal.

"I cannot be prosecuted for what I did with the information I was provided," Fleischer said. "The immunity provides no protection for perjury."

Libby says he was surprised to learn from NBC News reporter Tim Russert that Plame worked at the CIA. Anything he later told reporters about Plame was simply a repetition of what he learned from Russert, Libby said.

Special Prosecutor Patrick Fitzgerald's first witnesses were government employees who testified that they told Libby about Plame days before the Russert conversation. Fleischer is a key witness because, as Fitzgerald said in his opening statement: "You can't learn something on Thursday that you're giving out on Monday."

Nobody was ever charged with leaking Plame's identity. Libby is the only person charged in the case.

Libby's defense team will say that Friday, July 11, 2003 - the date that Fleischer told Gregory - is important, because they will say that this is the same day that Libby contacted NBC Washington Bureau Chief Tim Russert.

Libby has maintained that it was Russert who told him for the first time during that conversation about Plame. Libby told the grand jury that he was "taken aback" when he says he learned from Russert that Wilson's wife worked at the CIA. Libby also told the grand jury, "No, I didn't know that." Russert has said that Plame never came up in their conversation.

Defense attorneys will attempt to convince the jury that because Uganda is hours ahead of U.S. time, it is conceivable that Gregory told Russert who then told Libby.

Fitzgerald will counter this assertion by saying that Libby couldn't have been surprised to learn what he himself was giving out on Monday to the White House press secretary and that the jury should infer that Libby was lying to investigations about how he learned about Plame.

Defense to argue Fleischer testimony is tainted
Libby's attorneys will try to discredit Fleischer's testimony. Ted Wells has argued that Fleischer's testimony, which came only after the immunity deal, could be viewed as somewhat tainted.

Fitzgerald said that Fleischer, after reading a newspaper article indicating there was a criminal investigation, in September 2003 on the leak of Plame's name, indicated that to Fleischer, "it was one of those moments when your heart goes in your throat, and you think, I could be in very big trouble here."

The Washington Post article Fleischer read asserted that disclosing the identity of a covert CIA employee was a crime. Libby has not been charged with leaking Plame's name to reporters. He has been charged with lying to FBI investigators and obstructing their investigation into the leak, as to how he learned and what he told three reporters about Wilson's wife.

Libby's attorneys argue, in their motion to exclude some of Fleischer's testimony, that the jury should consider whether his immunity agreement gives him a reason to provide testimony that "will curry favor with the government."

Wells said Fleischer is in a "different position than any other witness in this case," and "may have issues where his credibility should be questioned because he has an arrangement."

'Motive to lie'?
Libby's defense team does not want to open the door to Fitzgerald to attempt to persuade the jury, through Fleischer's testimony, that Libby may have had a motive to lie because he was in a similar position to Fleischer.

Defense attorneys argue in the court filing, "Because Mr. Fleischer feared criminal prosecution in light of the article in question, this argument goes, Mr. Libby must have had a similar fear, and therefore motive to lie." They argue, "this court should not allow the government to prejudice Mr. Libby by using testimony concerning Mr. Fleischer's state of mind for this impermissible purpose."

Fitzgerald is expected to respond to Libby's attorneys in a separate court filing. This matter may delay Fleischer from taking the witness stand until presiding judge Reggie Walton issues a ruling on whether to allow Fleischer to testify on the reasoning for him to seek an immunity deal.

NBC's Joel Seidman, David Schuster and The Associated Press contributed to this story.

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