http://thenexthurrah.typepad.com/the_next_hurrah/files/070531_defense_presentencing.pdfNeither Mr. Libby Nor Anyone Else Understood Ms. Wilson To
Be Covert or ClassifiedThe Court’s focus during trial on what Mr. Libby actually knew about
Ms. Wilson’s status was correct, in light of the discovery provided to the defense. And to
the extent that the Court needs to consider Ms. Wilson’s status during this phase of the
proceedings, it remains correct. There is simply no evidence that Mr. Libby received
information indicating that Ms. Wilson’s position at the CIA was covert or classified.
Mr. Libby consistently testified that he did not understand Ms. Wilson to
be covert or classified. As detailed below, all of the relevant evidence – including the
grand jury and trial testimony of the government’s own witnesses – corroborates
Mr. Libby’s testimony that he was unaware of Ms. Wilson’s status. In light of the record,
then, it is misleading for the government to suggest that Mr. Libby’s grand jury testimony
on this point should not be believed.
As Mr. Libby told the grand jury, the Vice President told him that
Ms. Wilson worked at the CIA in June, but did not indicate that Ms. Wilson was covert or
that her job status was classified. This is consistent with Mr. Libby’s notes of that
conversation, which do not identify Ms. Wilson as covert or classified. See GX 104; GX
104T. At trial, the government produced three witnesses who said they, too, had told
Mr. Libby that Ms. Wilson worked at the CIA: Marc Grossman; Robert Grenier; and
Cathie Martin. None of them testified that he or she had told Mr. Libby that Ms. Wilson
was covert or classified.
The government also called five witnesses who said that Mr. Libby had
mentioned or referred to Ms. Wilson in conversations during June and July 2003: Craig
Schmall; Ari Fleischer; David Addington; Judith Miller; and Matthew Cooper. None of
these witnesses (nor any other trial witnesses) testified that Mr. Libby said Ms. Wilson
was covert. None of them testified that they believed Mr. Libby had been
communicating classified information to them. In sum, none of the witnesses who
testified at trial said that prior to July 14, 2003, they believed that Ms. Wilson’s affiliation
with the CIA was protected information.
...
The government does not explicitly concede a related point: that the
information provided to Mr. Libby did not identify Ms. Wilson as classified either. But
there can be no escaping this fact. We reiterate: no witness claims to have told
Mr. Libby that Ms. Wilson’s affiliation with the CIA was classified. (In fact, putting
aside what these witnesses actually told Mr. Libby, none of them testified that they
personally believed that Ms. Wilson’s status was classified at the time). Logically, then,
there is no basis to conclude that Mr. Libby received information about Ms. Wilson that
he knew was classified. For this reason alone, Mr. Libby could not have knowingly
violated the IIPA or the Espionage Act.