Libby's Lawyers to Meet with Judge

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Lawyers for former White House aide Lewis Libby go to court Friday. The former top aide to vice president Dick Cheney is charged with perjury and obstruction of justice in the leaking of a CIA agent's identity. Libby's defense team says he needs access to highly sensitive documents to defend himself.

LINDA WERTHEIMER, host

A federal judge here in Washington has set a January 2007 trial date for Lawyers for Lewis Scooter Libby, the former top aide to Vice President Dick Cheney is charged with perjury and obstruction of justice in the leaking of a CIA agent's identity. Libby's lawyers argue that he needs access to highly sensitive documents from the White House and the CIA to defend himself. NPR's Libby Lewis reports.

LIBBY LEWIS reporting:

If the jury ever hears his case, Libby's argument to the charges of perjury and obstruction of justice is fairly simple. If Libby wasn't telling the truth to investigators in a Grand Jury about his conversations with reporters about CIA agent Valerie Plame, it wasn't because he was trying to deceive. He was confused or it was a memory glitch.

Mr. RANDALL ELIASON (Former Prosecutor): Look at all the things he was involved in.

LEWIS: Former prosecutor Randall Eliason explains the defense argument.

Mr. ELIASON: All of these important national security matters, matters of life and death he's dealing with every day. He doesn't have time to remember little details about a single conversation with a single reporter that happened some time ago.

LEWIS: Eliason said it's similar to a favorite defense in white-collar cases, in WorldCom, HealthSouth, and now Enron.

Mr. ELIASON: They have what they call the clueless CEO defense.

LEWIS: Of course, Libby wasn't in any vice president's office, he was in the vice president's office, and his lawyers want the judge to order the government to turn over many documents, many of them classified. They want them partly to show how busy he was when he had those conversations about Plame. Libby's lawyers wrote to the judge, those conversations occurred in the midst of an unending torn of meetings, briefings and discussions of far more urgent and sensitive issues, including, for example, the detection and prevention of terrorist attacks against the United States.

Special prosecutor Patrick Fitzgerald has told Libby's lawyers, much of the information the defense is seeking is not relevant to the case. But Tom Green says he thinks these are reasonable requests. He's a white-collar defense lawyer in Washington.

Mr. TOM GREEN (Defense Lawyer, Washington): If you look at the request on its face, the request is basically saying, we need to see what was occupying Mr. Libby's time, and the defense would like to say these are the burdens of the job, and then these are the responsibilities; and then these are the intricacies of everything that he was having to deal with.

LEWIS: Reasonable or not, New York University law professor Stephen Gillers says he sees in the defense requests the opening moves of a high stakes chess game aimed at heading off a trial.

Mr. STEPHEN GILLERS (Law Professor, New York University): The legitimate or tactical reason for seeking it is to try to mount a defense based on the denial of access to that information, that if you won't give us this information, we cannot adequately defend our client. His constitutional rights have been compromised and the case has to be thrown out.

LEWIS: Will it work? It's early to be asking. But Libby's lawyers may not be disappointed. They drew the same judge who presided in the civil case of fired FBI whistle blower Sybil Edmunds. She sued and the government argued the case hinged on classified material that if exposed, could harm national security. The judge threw out the case.

Libby Lewis, NPR News, Washington.

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