Leopold: A Battle Over "Powerful Evidence" at Libby Trial

Fitzgerald wants the jury to see two articles from the Washington Post, dated October 4 and 12, 2003, that his investigators obtained from Libby's personal files. The articles in question, written by Washington Post reporters Walter Pincus and Mike Allen, are damaging to Libby's defense, Fitzgerald said, because they contain specific passages that Libby had underlined concerning the harm caused by Plame's identity becoming public and the possibility that whoever was responsible for the leak may have violated a federal law.
Fitzgerald has argued that the articles with the underlined passages prove Libby feared he was responsible for the damage to national security the leak caused and therefore concocted a story about learning Plame's identity and work with the CIA from Tim Russert, host of "Meet the Press," in order to save his job.
Plame's name was revealed in a syndicated column by Robert D. Novak on July 14, 2003 - eight days after her husband, Joseph Wilson, accused the administration of twisting intelligence to justify war with Iraq.


But Fitzgerald said the articles in question established a motive for Libby to lie to Bond because the substance of the news reports was damning.

Libby's attorneys say the articles will prejudice the jury, and they have filed a motion seeking to block Fitzgerald from introducing them into evidence. The defense argues that the articles contain numerous references to Plame's "clandestine" status, and if introduced into evidence they will lead the jury to believe that Libby is guilty of leaking classified information, a charge Libby is not under indictment for. But Fitzgerald said the articles are relevant to his case in order to establish what Libby's state of mind was when he testified, not to establish the "truth" about whether or not Plame worked in a covert capacity.

"This is a trick, your honor," said defense attorney William Jeffress during a hearing on the issue Thursday, according to a copy of the court transcript. "Let's take the October 4 [2003] article. 'The leak of a CIA operative's name has also exposed the identity of a CIA front company potentially expanding the damage caused by the original disclosure ...' blah, blah, blah. Your honor, that would be so prejudicial to the defense, I don't think we would ever be able to recover. You have the same thing with the [October 12, 2003] article. Again, talks about how she was 'clandestine' blah, blah, blah. I mean, this is a trick, your honor. These articles cannot possibly go into evidence to the jury. No instruction to just not consider them for their truth could possibly overcome the prejudice."

Fitzgerald took issue with Jeffress's characterization, telling Judge Walton, "It's not a trick to offer evidence that goes right to the heart of the issue: Mr. Libby's state of mind."

"[There is] an article [Libby] printed on October 4 [2003], ten days before his FBI interview, that is in his file, indicating that there could be damage" that resulted from the Plame leak, Fitzgerald told Walton. "And I just think it's a trick to stand up there and say there is no motive to lie because all the evidence that shows he had a motive to lie comes from his own file. The jury is entitled to know what was in [Libby's] head and this was in his head and in his file. It's direct proof as what he had in mind when he made up a story that says, you know what, I forgot everything that came from the vice president."

http://www.truthout.org/docs_2006/020507J.shtml