U.S. District Judge Reggie Walton said that Libby's right to a fair trial trumped any First Amendment right there might be to protect confidential sources. Walton pointed out that it was Sanger's source -- Libby -- who was asking the reporter to testify.
Once Sanger's motion was denied, Special Prosecutor Patrick Fitzgerald resumed playing audio recordings from Libby's testimony before a federal grand jury that was investigating the leak of Plame's identity. Trial jurors listened to the recording and followed along in books containing transcripts of Libby's previously secret testimony
Libby Says Cheney 'Disturbed' by Wilson's Claims
Ex-Aide Testifies Cheney Repeatedly Discussed How to Rebut War Critic
Washington Post Staff Writer
Tuesday, February 6, 2007; 12:18 PM
Vice President Cheney was "disturbed" by a war critic's claims that the administration had misled the American public about the reasons for war with Iraq, and in the summer of 2003 the White House discussed on a daily basis how to rebut that accusation, I. Lewis "Scooter" Libby told a grand jury investigation.
Libby, who was Cheney's chief of staff, is charged with lying to that grand jury, which was investigating the leak to the media of the name of an undercover CIA officer. Audiotapes of his 2004 were played in his trial today.
In the tapes, Libby told the grand jury that he had forgotten many conversations and events during that time that related to the critic, former ambassador Joseph C. Wilson IV. Among the things he forgot: that Cheney told him in mid-June 2003 that Wilson's wife, Valerie Plame, worked at the CIA -- the very information that was ultimately leaked to the press. He also testified that he thought he was learning it "for the first time" when NBC's Tim Russert told him the information on July 10 or 11, 2003.
"My recollection is I was surprised when I heard it from Russert," Libby said.
Special Counsel Patrick J. Fitzgerald asked Libby during the grand jury session if he was sure, reminding him of notes he received and officials who said they had conversations with him about Wilson's wife that week.
"This doesn't change my recollection," Libby responded.
Russert, who is set to take the witness stand tomorrow, has told prosecutors that he never talked with Libby about Plame and didn't know about her or her CIA job at the time of their telephone conversation.
Prosecutors have alleged Libby concocted a story about temporarily forgetting the Cheney conversation to avoid legal jeopardy regarding information he later shared about Valerie Plame's classified CIA role with reporters. Passing on classified information given to him by the vice president could be illegal, but sharing unconfirmed gossip provided by a reporter would not.
He is charged with perjury, false statements and obstructing the investigation into whether senior administration officials broke the law in sharing information about Plame's CIA role with reporters. He is not charged with the leak.
Libby testified that despite the alarm that Wilson's claims set off in the administration, he could not recall discussing Wilson's wife with a series of administration officials who have now testified that they recall the conversations quite clearly. He said that at a July 7 lunch with former White House press secretary Ari Fleischer, he didn't remember them discussing Plame or her CIA role, but he did remember talk about the Miami Dolphins, a football team they both cheered for, and Fleischer's future plans to start a consulting business.
Fitzgerald pressed Libby: "Isn't it a fact that you told Mr. Fleischer at this lunch" that Wilson's wife worked at the CIA "and that this was hush-hush, on the q.t?"
"I don't recall that," Libby said, his voice turning quiet muted.
"Yes sir, in that period I have no recollection."
Libby's testimony in 2004 -- a core piece of evidence in the case against him -- could undercut his current defense in that he acknowledges how crucial the Wilson claims were to his boss and the White House at the time. His attorneys have argued that he misspoke or misremembered conversations with reporters when he testified before the grand jury because those conversations were relatively unimportant in the crush of other national security matters he was juggling.
This morning, U.S. District Judge Reggie B. Walton ruled that a New York Times reporter, David Sanger, must appear as a witness for Libby's defense.
Libby's attorneys have said they want Sanger, now the Time's chief Washington correspondent, as a witness because he could testify that Libby did not tell him about Plame when the two spoke on July 2, 2003 -- approximately the same time period when the prosecution contends Libby did disclose the CIA officer's name to Judith Miller, another Times reporter at the time. The defense says the fact Libby did not tell Sanger demonstrates that he and other administration officials were not aggressively trying to spread Plame's identity among journalists.
Sanger's attorney, Charles S. Leeper, argued that his client should be spared from testifying because his relevance to the case was minimal compared with the damaging effect his court appearance would have on his ability to form confidential source relationships in the future. Leeper noted that the conversation between Sanger and Libby took place four days before Wilson published an op-ed piece in the New York Times questioning the administration's arguments for the war in Iraq, so that presidential aides would not yet have had the motivation to try to discredit the former ambassador by telling reporters he had been sent on a CIA mission to Africa only because his wife worked there.
Libby's lawyers countered that Libby's talk with Sanger was crucial to their case, in part because it could be used to undermine Miller's testimony that Libby actually had mentioned Wilson's wife to her.