The Corner

LIBBY, CHENEY AND THE WILSON OP-ED

The Lewis Libby defense team filed a new motion last night concerning the press articles that will be used in Libby’s trial on perjury and obstruction of justice charges in the CIA leak investigation. The most interesting part of the new filing concerns the recently disclosed copy of Joseph Wilson’s July 6, 2003 New York Times op-ed with Vice President Dick Cheney’s personal notes written on it.

In the margins of the article, Cheney wrote, “Have they done this sort of thing before? Send an Amb. to answer a question? Do we ordinarily send people out pro bono to work for us? Or did his wife send him on a junket?”

Some observers have claimed that the annotated article shows Cheney giving Libby his “marching orders” to smear Wilson. And prosecutor Patrick Fitzgerald wrote in a recent motion that, “Those annotations support the proposition that publication of the Wilson Op-Ed acutely focused the attention of the vice president and the defendant — his chief of staff — on Mr. Wilson.”

There’s only one problem. In the new filing, Libby says that the first time he ever saw the annotated op-ed was when Fitzgerald’s FBI agents showed it to him in November 2003. And Libby told that to both Fitzgerald and the grand jury in March 2004 — in testimony which Fitzgerald has not challenged. From the new Libby filing:

The prosecution wants to introduce a copy of Mr. Wilson’s July 6 op-ed that includes notations written by the Vice President, even though it is aware that Mr. Libby testified before the grand jury that he did not see this document until it was shown to him by the FBI in November 2003. On his first day of grand jury testimony, when asked if he recalled discussing this particular document with the Vice President, Mr. Libby testified: “I don’t recall that . . . I subsequently learned that he had such an article from the FBI agents who talked to me.” During Mr. Libby’s second appearance before the grand jury, the Special Counsel asked him: “[W]hy don’t I show you the copy of the July 6th column with some handwriting on it. And I believe we showed this document to you the last time, or at least discussed it, and you indicated that you had not seen this copy of the article with the handwriting until the FBI showed it to you?” Mr. Libby responded: “That’s my recollection, sir.”

Yet, despite such clear testimony, the government asserts that the Vice President’s notations are relevant to the charges against Mr. Libby and that this document is admissible. The government argues that those notations

support the proposition that publication of the Wilson Op Ed acutely focused the attention of the Vice President and the defendant — his chief of staff — on Mr. Wilson, on the assertions made in his article, and on responding to those assertions. The annotated version of the article reflects the contemporaneous reaction of the Vice President to Mr. Wilson’s Op Ed article, and thus is relevant to establishing some of the facts that were viewed as important by the defendant’s immediate superior, including whether Mr. Wilson’s wife had “sent him on a junket.”

The government evidently wants to argue to the jury that “facts that were viewed as important” by the Vice President would have been important to Mr. Libby too, and that the Vice President’s notations can be used to show what Mr. Libby focused on during July 2003. These arguments are tantamount to an acknowledgement that the state of mind of witnesses other than Mr. Libby will be important at trial — precisely what Mr. Libby has been arguing in the pending motion.

Two other notes about the filing. One, it sheds light on why Fitzgerald worded his argument as he did. Saying that the Cheney annotations “support the proposition that publication of the Wilson Op-Ed acutely focused the attention of the vice president and the defendant — his chief of staff — on Mr. Wilson” would lead any reasonable reader to think that Fitzgerald was saying Libby had seen the document, when in fact Fitzgerald did not have evidence to support that contention, and had Libby’s testimony saying he, Libby, had not seen it.

Finally, some observers have suggested that the existence of the annotated op-ed is evidence that Fitzgerald is somehow closing in on Cheney’s role in the Wilson affair. But the new filing shows that Fitzgerald has had the op-ed for more than two and a half years and never mentioned it in the Libby indictment or any other statement or filing until recently. If he had some greater purpose in mind for the op-ed, it seems likely he would have acted on it by now.

Byron York is a former White House correspondent for National Review.

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