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Walton said he would allow the tapes to be released as soon as the jury finishes hearing them. He implored journalists to use them responsibly

http://www.washingtonpost.com/wp-dyn/content/article/2007/02/05/AR2007020500119.html

Audiotapes of Libby's Testimony to Be Released

By Amy Goldstein and Carol D. Leonnig
Washington Post Staff Writer
Monday, February 5, 2007; 1:20 PM

 

The federal judge presiding over the trial of I. Lewis "Scooter" Libby ruled this morning that the public is entitled to hear audiotapes of Libby's testimony before the grand jury that investigated the 2003 leak of an undercover CIA officer's identity.

Statements by Vice President Cheney's former chief of staff are at the core of his perjury trial. Prosecutors allege that he deliberately lied to grand jurors, and separately to FBI agents, to obscure his role in disclosing the identity of Valerie Plame, the CIA officer married to an outspoken critic of the Bush administration's Iraq policies.

Defense attorneys argued that Libby's right to a fair trial would be jeopardized if the public heard his voice from two appearances before the grand jury in March 2004. A consortium of news organizations, including The Washington Post, sought the tapes, arguing that they were no different than any other evidence in the trial, which is being released publicly the day it is introduced.

The tapes are scheduled to be played for the jury later today.

Libby is charged with two counts of perjury, two counts of making false statements and one count of obstructing the investigation. He has pleaded not guilty to the five felonies, contending that, when he spoke with investigators, he innocently misremembered events surrounding the disclosure of Plame's identity. He is not charged with the leak itself.

Prosecutor Patrick J. Fitzgerald alleges that Plame's name was disclosed to the media to discredit her husband, former ambassador Joseph C. Wilson IV. Wilson accused the White House of twisting information he gathered on a CIA-sponsored mission to Africa, where he determined that reports of Iraq's attempts to obtain nuclear material were unfounded.

Defense attorney William H. Jeffress Jr. argued this morning that access to Libby's grand jury testimony by the public and the press should be restricted to written transcripts, not the tapes themselves.

"It is great stuff, and all of the radio stations and television stations will be broadcasting soundbites," Jeffress said. "There will be commentary."

Jeffress noted that the judge has warned jurors to avoid all news during the trial. Still, Jeffress said, the news generated by the tapes -- and the public buzz about them -- could be so extreme that there was a risk jurors could accidentally encounter it, perhaps while riding buses or the Metro.

Jeffress, who early in his career successfully argued a pivotal case to prevent the public broadcast of tape-recorded calls in the White House, argued last Thursday that he "had never heard" of the public release of grand jury testimony from this court.

But in court today, Nathan Siegel, an attorney representing The Post, the Associated Press and other news organizations, told the judge that "this is not some novel proposition . . . we are bringing for the first time." He noted that courts have held that there is no distinction between the release of transcripts and actual tapes.

If anything, Siegel contended, there was less likelihood the public would hear a distorted version of what Libby told the grand jury if it had access to his voice on the tapes.

"There is going to be a great deal of comment on these tapes," Siegel said. "The question is, are you going to have the actual tapes . . . or are you going to have reporters' characterizations?"

Fitzgerald said he was not taking a position on the matter.

Walton said he was concerned about the potential for what he called "double mischief": that reporters could air Libby's testimony out of context and that commentators could further distort the defendant's statements. Nevertheless, the judge ruled, based on decisions in other federal cases in the Washington area and elsewhere, he had no grounds to block the tapes' release. He noted that courts already had ruled, for example, that release of emergency response tapes during the Sept. 11, 2001, terrorist attacks were appropriate in the trial of an accused terrorist.

Walton said he would allow the tapes to be released as soon as the jury finishes hearing them. He implored journalists to use them responsibly.

"The press hasn't looked good in this trial," the judge said, adding that he hoped the media "will do what it can do to prevent itself from looking even worse" by reporting on the tapes in a way that "will be objective and not with the spin on it."

Also this morning, one of Libby's attorneys, Theodore V. Wells Jr., continued his cross-examination of an FBI agent who questioned Libby as part of the leak investigation during the fall of 2003.

On Thursday, Deborah S. Bond, now the lead FBI agent in the case, gave the jury a detailed account of two FBI interviews with Libby during which she said he did not acknowledge disclosing Plame's identity to journalists. She said his version of events, which has been contradicted by testimony from other prosecution witnesses, was that he did not remember that he had first learned of Plame from Cheney when he was later told of her by NBC's Tim Russert.

Bond also testified that Libby had told her he "may" have talked with Cheney during a July 12, 2003, conversation aboard Air Force 2 about whether to talk to reporters about Wilson's wife -- but that he could not be certain.

Under this morning's cross-examination, which is scheduled to continue this afternoon, Wells tried to poke holes in several aspects of Bond's testimony. Wells pointed out, at one point, that Libby had merely said that he did not recall his conversation with Cheney about Wilson's wife, not that he had "no knowledge" of it, as Bond had testified last week.

Most notably, Bond acknowledged that she had "stumbled over her words" when she told jurors what Libby had said to the FBI about a conversation he had with President Bush's top political adviser, Karl Rove. After giving the jury the correct account of what Libby had said, Bond said she erred because she had been "a little nervous" on the witness stand.

Wells seized the opening, using Bond to illustrate the defense's central argument -- that Libby had innocently misremembered events. "Sometimes people make mistakes," Wells said to the FBI agent. "You said it in good faith?"

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