By MATT APUZZO
The Associated Press
Wednesday, February 14, 2007; 2:23 PM
WASHINGTON -- Defense attorneys misled the court into thinking that former White House aide I. Lewis "Scooter" Libby would testify in his CIA leak trial, a federal judge said Wednesday, as he blocked Libby from using some classified evidence in the case.
Libby is accused of lying and obstructing an investigation into the 2003 leak of a CIA operative's identity. His attorneys have said for months in court papers that Libby would testify that he had important national security issues on his mind and that he simply forgot details about his conversations regarding the CIA employee, Valerie Plame.
Special Prosecutor Patrick Fitzgerald agreed to tell jurors about the terrorist threats, war planning and other secret issues that Libby faced at the time. The prosecutor said that he agreed to do this on the condition that he could cross-examine Libby at some point on just how seriously he considered these threats.
When defense attorneys abruptly announced Wednesday that Libby no longer planned to testify, however, Fitzgerald said that jurors hearing the case therefore should not be given a prewritten statement about Libby's briefings.
U.S. District Judge Reggie Walton agreed, and reversed an earlier ruling that the evidence could be admitted.
"My absolute understanding was that Mr. Libby was going to testify," the judge said. "My ruling was based on the fact that he was going to testify."
Walton appeared upset and seemed to stake his reputation on the decision. Libby's attorneys indicated they would appeal the decision if Libby is convicted.
"If that's what the Supreme Court is going to say (in any ruling on an appeal), they might as well say the government's not entitled to a fair trial and the defendant is," Walton said. "I think both sides are entitled to a fair trial. If I get reversed on that, maybe I need to hang up my spurs."
Walton said he would consider allowing three CIA briefers to testify about what they told Libby during the mid-2003 intelligence briefings. Fitzgerald said that, too, should be excluded now that Libby isn't going to testify.
Walton said he would rule on that issue later Wednesday. He also was weighing whether to put NBC newsman Tim Russert back on the witness stand so Libby's attorneys could continue attacking his credibility.
Russert, who testified last week, is a key witness in case. Libby's attorneys want to show jurors three video clips that seem to contradict some of Russert's testimony.
Russert testified last week that he never discussed CIA operative Valerie Plame with Libby. Libby told investigators that Russert asked about Plame and said "all the reporters" knew she worked at the CIA. That dispute is at the heart of the case. Libby is accused of making up the Russert call to cover up other conversations he had with reporters and of obstructing the investigation into the leak of Plame's name.
The most recent effort to discredit Russert does not directly undercut his story. Rather it involves testimony over the arrangements prosecutors made in exchange for Russert's cooperation.
Russert was not put before a grand jury. Rather, he was allowed to testify in an interview alongside his lawyer. As Libby's attorneys tried last week to cast that as favorable treatment, Russert _ a law school graduate and former Senate counsel _ said he was unaware that grand jury witnesses are not allowed to have attorneys present.
Libby's attorneys found three old television clips that suggest Russert did know. In those clips, Russert describes the grand jury that was investigating members of the Clinton administration. In them, he notes that witnesses are not allowed to have attorneys in the room when they testify.
"His credibility, it seems to me, is crucial to this case," Walton said. "He's probably, if not the most important, one of the most important witnesses."
Fitzgerald said Libby's attorneys had their chance to cross-examine Russert and wanted a "do over." Russert was cross-examined for five hours after offering 12 minutes of direct testimony. Fitzgerald said it doesn't matter what Russert knew about grand jury procedure.
Defense attorney Theodore Wells said Russert got special treatment and he wants to use the tapes to show Russert was trying to conceal that.
Russert and Libby tell different stories about a July 2003 phone conversation. Libby says at the end of the call, Russert told him that Plame, the wife of prominent war critic Joseph Wilson, worked for the CIA. Russert said that part of the conversation never occurred.
Libby subsequently repeated the information about Plame to other journalists, always with the caveat that he had heard it from reporters, he has said. Prosecutors say Libby concocted the Russert conversation to shield him from prosecution for revealing classified information from government sources.
Associated Press writer Michael J. Sniffen contributed to this report.