By Carol D. Leonnig and Amy Goldstein
Washington Post Staff Writers
Thursday, February 1, 2007; 1:54 PM
A federal judge presiding over the perjury trial of Vice President Cheney's former chief of staff expressed doubt this morning about defense arguments that I. Lewis "Scooter" Libby was made a scapegoat by the White House in 2003 as the furor grew over the leak of a CIA officer's identity to the media.
On the seventh day of testimony in Libby's trial, U.S. District Judge Reggie B. Walton said that argument was dramatically undercut by a key piece of evidence in the case -- that former White House press secretary Scott McClellan, at Cheney's direction, publicly exonerated Libby in the fall of 2003 of any role in leaking information about the officer, Valerie Plame.
"That Mr. McClellan did this because the requests were being made by Mr. Libby and the vice president's office, it does undermine that there was this effort by the White House to sacrifice Mr. Libby," Walton told attorneys for both sides after the jury had been excused during a morning session. "To my mind, there hasn't really been any substantial evidence to suggest that [scapegoating] was in play."
Walton's comments came as the prosecution pressed to play videotapes of McClellan's October 2003 briefing for the jury. Asked during a press briefing just days before Libby was interviewed by the FBI whether Libby or two other administration officials had leaked Plame's name, the videotape shows McClellan replying: "They are good individuals. They are important members of our White House team. That is why I spoke with them so I could come back and say to you, they were not involved." Libby had complained to Cheney that McClellan had exonerated senior White House advisor Karl Rove but not Libby days earlier, according to witnesses and documents presented at the trial. Cheney then called the White House to urge McClellan to do the same for Libby, suggesting some phrases that Libby and Cheney worked out together in a private meeting. According to one exhibit, Cheney scribbled on a note: "Has to happen today."
"Why shouldn't this jury be allowed to see tapes showing Mr. McClellan and the White House was supporting his story -- that he had done nothing wrong?" Walton asked the defense. "It's clear the statement exonerating Mr. Libby was made on behalf of the White House."
After lengthy debate between the parties, Walton ruled the jury should hear portions of the tapes, because they are relevant to Libby's state of mind before he was interviewed by FBI agents about his discussions with reporters.
Defense attorney Theodore Wells Jr. initially argued there was no proof that Libby had watched the briefing or read a full transcript of it, and therefore it could not influence his state of mind. Special Counsel Patrick J. Fitzgerald said it was impossible to believe Libby wasn't paying attention to a White House press briefing that mentioned him by name in relation to a criminal investigation.
Libby is charged with lying to FBI agents and a grand jury and with obstructing justice in the investigation of who leaked Plame's name to the media. He is not charged with the leak itself. Fitzgerald has said Plame's name was leaked by administration officials trying to discredit her husband, former ambassador Joseph C. Wilson IV. Only days before the leak, Wilson publicly charged that the White House was twisting intelligence he had gathered as it justified the invasion of Iraq.
Libby has pleaded not guilty, contending that he did not remember conversations he had with reporters about Plame amid the crush of his work on national security issues. He told investigators he first learned Plame's name in a July 10, 2003, telephone conversation with NBC's Tim Russert.
The prosecution, led by Fitzgerald, believes it is crucial to share the McClellan briefing with jurors for two reasons. Fitzgerald argued that it shows that a week before Libby was required to meet with FBI agents about his conversations with reporters, he made a special plea to the vice president to say he had nothing to do with the leak. He also contended that the briefing dramatically undercuts the defense argument that Libby feared the White House was making him a scapegoat.
"There is no evidence of an effort to throw him under the bus," Fitzgerald told the judge this morning. "He just couldn't walk back from his story."
Wells said Libby's actions were those of a person who had no fear of legal jeopardy and only wanted to be treated fairly.
"He was concerned about scapegoating," Wells said. "My argument will be only an innocent person would go to the vice president of the United States and say what they're doing is unfair."
Fitzgerald added that the briefing shows how concerned Libby was, that he "upped the stakes" by insisting through the White House press secretary that he was innocent, and then had to stick to his story.
"He put down a marker with the vice president and said 'I'm not involved,' " Fitzgerald said. "If he turns around in four days and says, 'Yes, I heard this information and gave it out to Ari Fleischer, told it to Judy Miller and confirmed it for Matt Cooper,' that's a problem. He's gotta tell a story consistent with what he just told the vice president and the world."
Fleischer was the White House press secretary at the time of the leak and McClellan succeeded him. Miller and Cooper were then reporters for the New York Times and Time magazine respectively. All three have said Libby discussed Plame with them in the days and weeks before Libby contends he first learned of her.