Libby hires expert in criminal law on national secrets

By JAMES STERNGOLD
San Francisco Chronicle
22-NOV-05

Lewis "Scooter" Libby, who is charged with obstructing justice and lying in the CIA leak case, has hired a leading expert in using classified information in criminal trials, giving an early hint of his possible defense strategy.

Libby, who was Vice President Dick Cheney's chief of staff until his indictment last month, has retained John Cline, an unusually experienced attorney in cases involving classified information. Cline is a San Francisco-based partner with Jones Day, a major national law firm.

Cline has been involved in several high-profile criminal cases whose outcomes turned in part on demands for the introduction of such government secrets at trial. These have included the criminal defense of Oliver North and the case of Wen Ho Lee, a former nuclear scientist who had been accused of mishandling nuclear secrets. Cline confirmed that he had been retained by Libby, but he said he could not comment on the case.

Theodore Wells Jr., Libby's principal attorney, did not return a call or an e-mail seeking comment.

"This is about as subtle as a sledgehammer to the government," said Robert Weisberg, a criminal law expert at the Stanford Law School. "This suggests they are going to use a very concerted and aggressive strategy."

Although Libby was investigated on suspicions that he or others in the Bush administration might have illegally leaked to journalists the identity of a covert CIA operative, Valerie Wilson, the actual crimes Libby was charged with have nothing to do with the misuse of government secrets.

But Cline's involvement suggests that a defense strategy may be to try to bring large volumes of classified information into the trial to demonstrate the many things Libby was dealing with as a senior national security adviser when he spoke with journalists and later testified to the grand jury.

If Libby's defense can show his thinking might have been obscured by the many sensitive issues he was dealing with, it could potentially weaken the case against him.

Libby was indicted in Washington on Oct. 28 by Special Counsel Patrick Fitzgerald on five felony charges _ one count of obstruction of justice, two counts of making false statements to the FBI and two counts of perjury for lying to the grand jury.

All the charges relate to the prosecutor's allegations that Libby was deceptive or misleading in his comments about what he had told journalists, including Judith Miller of the New York Times, about Wilson, also known by her maiden name, Valerie Plame, whose identity was leaked to several reporters and was first reported by columnist Robert Novak in July 2003.

John Vandevelde, a Los Angeles lawyer who was involved in a criminal case several years ago with Cline that involved classified information, called the San Francisco attorney "a very, very highly regarded lawyer" who is extremely knowledgeable about the law on government secrets and extremely effective in using the law.

In the case, Vandevelde represented a woman who was charged with being a spy for China, and Cline represented a former FBI agent who was charged with helping her pass secrets to China. All the charges were ultimately dropped.

The law governing the use of the classified data is called the Classified Information Procedures Act, or CIPA. It sets up strict procedures for attorneys to review classified data with their clients in special rooms and for how the defense can request the disclosure of such secrets during a trial.

The arguments can be critical. If a judge agrees to permit the use of the information in open court, then the prosecutors are faced with having either to allow the disclosure of sensitive government information or to consider dismissing the charges.

"In this case the defense doesn't have to win on every element of their claims, they just may want to scare the daylights out of the government at this stage," said Weisberg.

(Distributed by Scripps Howard News Service, http://www.shns.com.)