No Easy Answers

    Wordsmithing the Libby theory of defense, with the benefit of the trial itself intervening between. The Theory of Defense was first propounded on January 19 [Doc 249] and is now, February 15, submitted the the Court in revised form [Doc 289].

    Merged (by hand) to show changes. Clearly an improvement over the original, but doesn't materially alter Libby's personal theory of defense.

    Interesting to me (not the defense, but to the prosecution) that so little evidence was entered that illustrated the political firestorm developing from August through all of September, culminating in the start of an official investigation. The "leak" had taken on a greater dimension by then. The political environment at the time Libby was questioned by the FBI was radically different from the political environment in June and July. The leak of Plame was a HOT issue. There is little discussion of this evolution by any of the pundits. In the debate over motive, Libby defenders are mired in the "no legal jeopardy for leaking, therefore no reason to lie" paradigm, and the Libby opponents are mired in the "lied to cover for Cheney" paradigm.

    Another little-probed fact is the timing of Libby delivering his "generic reporter waiver." He did not deliver it in November, when asked to by the FBI. He waited about 6 weeks, until shortly after the Special Counsel was appointed. I think Libby was playing a waiting game, with the hope that the firestorm over the leak of Plame would blow over. If only the FBI was involved, and he never delivered a waiver, who would know? But having been personally accused in the media, and faced with a Special Counsel, the absence of a waiver could be taken as a sign of guilt.

    Sorry for the diversion - stream of consciousness, I think. Back to Libby's revised theory of defense.

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    Mr. Libby denies contends that the government has not proven beyond a reasonable doubt that he intended to or did obstruct justice, make intentionally false statements to the FBI, or make intentionally false statements to the grand jury. Mr. Libby He contends that he told the FBI and the grand jury his honest recollections at the time, and to the extent any of those recollections were incorrect, his mistakes were innocent. He contends that he lacked any notes of the conversations about which he has been accused of lying was questioned, and that he was unable to refresh his recollection by reviewing the notes of other people and discussing with them their recollections of events. He further contends that any conversations he had about Ambassador Wilson's wife during June and July 2003 were so brief, and the information he received so incidental to the issues he was dealing with, that he honestly did not recall them when he was questioned about them. the amount and importance of intelligence information he was receiving and responding to during June and July 2003, and the number of vital issues of national security he was dealing with on a daily basis, dwarfed any information about Joseph Wilson's wife's employment. Thus Mr. Libby contends that it is natural that he did not recall, or recalled incorrectly, brief conversations about the employment of Mr. Wilson's wife when the FBI's investigation began in October scope of vital national security issues and information confronting him on a daily basis during June and July 2003 may have affected his memory of any brief conversations about the employment of Mr. Wilson's wife when he talked to FBI investigators in October and November 2003, three or more months after the conversation are alleged to have happened, and when he testified to the grand jury the following March. Mr. Libby further contends that when the investigation began, he was confident knew that he had not provided any information about Mr. Wilson's wife Ms. Wilson to Robert Novak. , and He also contends that he did not know that Ms. Wilson's employment status was covert or classified and that he had not disclosed did not knowingly disclose classified information about Mr. Wilson or his wife Ms. Wilson to any other reporters. Further, Mr. Libby was well aware when he was first interviewed by the FBI and when he testified to the grand jury that the investigators could and likely would talk to government officials and the journalists he spoke with concerning Ambassador Wilson and that those officials and journalists would truthfully recount their recollections of the conversations he had with them. Thus Mr. Libby submits he had no reason to lie to the FBI or the grand jury, and did not do so.

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     Case 1:05-cr-00394-RBW          Document 289-1         Filed 02/15/2007      Page 1 of 2



                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA                      )
                                              )
                v.                            )       Cr. No. 05-394 (RBW)
                                              )
I. LEWIS LIBBY,                               )
      also known as "Scooter Libby,"          )
      Defendant.                              )


                     I. LEWIS LIBBY'S REVISED PROPOSED THEORY
                             OF THE DEFENSE INSTRUCTION


         Mr. Libby contends that the government has not proven beyond a reasonable doubt that

he intended to or did obstruct justice, make intentionally false statements to the FBI, or make

intentionally false statements to the grand jury. Mr. Libby contends that he told the FBI and the

grand jury his honest recollections at the time, and to the extent any of those recollections were

incorrect, his mistakes were innocent. He contends that he lacked any notes of the conversations

about which he was questioned, and that he was unable to refresh his recollection by reviewing

the notes of other people and discussing with them their recollections of events. He further

contends that the amount and scope of vital national security issues and information confronting

him on a daily basis during June and July 2003 may have affected his memory of any brief

conversations about the employment of Mr. Wilson's wife when he talked to FBI investigators in

October and November 2003, three or more months after the conversation are alleged to have

happened, and when he testified to the grand jury the following March. Mr. Libby further

contends that when the investigation began, he knew that he had not provided any information

about Ms. Wilson to Robert Novak. He also contends that he did not know that Ms. Wilson's

employment status was covert or classified and that he did not knowingly disclose classified


DC01:466568.1

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     Case 1:05-cr-00394-RBW          Document 289-1        Filed 02/15/2007       Page 2 of 2



information about Ms. Wilson to any reporters. Further, Mr. Libby was well aware when he was

first interviewed by the FBI and when he testified to the grand jury that the investigators could

and likely would talk to government officials and the journalists he spoke with concerning

Ambassador Wilson and that those officials and journalists would truthfully recount their

recollections of the conversations he had with them. Mr. Libby submits he had no reason to lie

to the FBI or the grand jury, and did not do so.




Dated: February 15, 2007                           Respectfully Submitted,

/s/ Theodore V. Wells, Jr.                         /s/ William H. Jeffress, Jr.
Theodore V. Wells, Jr.                             William H. Jeffress, Jr.
(D.C. Bar No. 468934)                              (D.C. Bar No. 041152)
James L. Brochin                                   Alex J. Bourelly
(D.C. Bar No. 455456)                              (D.C. Bar No. 441422)
Paul, Weiss, Rifkind, Wharton                      Baker Botts LLP
  & Garrison LLP                                   1299 Pennsylvania Avenue, NW
1285 Avenue of the Americas                        Washington, DC 20004
New York, NY 10019-6064                            Tel: (202) 639-7551
Tel: (212) 373-3089

/s/ John D. Cline
John D. Cline
(D.C. Bar No. 403824)
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104
Tel: (415) 626-3939




DC01:466568.1