Next At Libby Trial: An Immunity Issue

Attorneys for former vice presidential aide I. Lewis "Scooter" Libby want more information about an unusual immunity-from-prosecution deal that government lawyers gave former White House spokesman Ari Fleischer in the CIA leak case.

Special Prosecutor Patrick Fitzgerald says that in early 2004, as his investigation into who revealed CIA operative Valerie Plame's name to reporters was heating up, Fleischer stepped forward with an offer to prosecutors: Promise no prosecution and he would help their case.

Fleischer acknowledged being one of the leakers, but he wouldn't say a word without a promise of immunity.

Deputy Prosecutor Peter Zeidenberg said Fleischer will explain that he wanted immunity because he had found a story online which said there was a criminal investigation into the possible disclosure of a covert agent — and he knew he had conveyed information to reporters that Scooter Libby previously had conveyed to him.

Zeidenberg said when he read this, "it was one of those moments where your heart goes in your throat." The next day, Fleischer hired an attorney.

The government wants to introduce the article Fleischer read to shed some light on Fleischer's state of mind. The defense fought vigorously to keep the article out of evidence, fearing that it would be prejudicial to Libby.

Prosecutors normally insist on an informal account of what a witness will say before agreeing to such a deal. It's known in legal circles as a proffer, and Fitzgerald said Thursday that he never got one from Fleischer, who was chief White House spokesman for the first 2½ years of President Bush's first term.

"I didn't want to give him immunity. I did so reluctantly," Fitzgerald said in court Thursday. "I was buying a pig in a poke."

Defense attorneys are skeptical. Fleischer is expected to testify Monday against Libby, who is accused of lying and obstructing Fitzgerald's investigation. Attorneys are preparing court documents demanding to know exactly what Fleischer promised in exchange for immunity.

"I'm not sure we're getting the full story here," defense attorney William Jeffress said in court.

Once the deal was struck in February 2004, Fleischer revealed that he had discussed Plame with reporters in July 2003, days before leaving his job at the White House. He also said he learned about Plame from Libby, who was the chief of staff to Vice President Dick Cheney.

Fleischer's testimony is significant because he says he talked to Libby about Plame days before Libby told the FBI he was surprised to learn it from a reporter.

Court documents show what Fleischer told the grand jury: that he had had lunch with Libby on July 7, 2003 and during that lunch, Libby told Fleischer that Wilson's wife had sent her husband on a trip to Africa to examine intelligence reports indicating that Iraq had sought to buy uranium ore from Niger, Hester reports.

Fleischer described the lunch as being "kind of weird" and that Libby typically "operated in a very closed-lip fashion." Fleischer "recalled that Libby 'added something along the lines of, you know, this is hush hush, nobody knows about this. This is on the q.t.'"

Libby's attorneys want details about Fleischer's agreement to cast the defendant as someone who's pointing fingers to protect himself. Fitzgerald says he doesn't have to disclose his conversations with Fleischer because they weren't about specific testimony.

"It wasn't as if someone said, 'Here's what I can give you about Mr. Libby. Is that good enough? You know, will that give us immunity?'" Fitzgerald said. "That wasn't it."

The Fleischer gamble is the second such arrangement that prosecutors are known to have made with leakers in the case.

At the onset of the investigation, former Deputy Secretary of State Richard Armitage said he told authorities that he was the source behind columnist Robert Novak's story that revealed Plame's identity and triggered the probe.

Fitzgerald has not discussed the arrangement with Armitage but said Thursday that he granted immunity to Fleischer believing only that he had "relevant information."

The deal Fitzgerald made was unusual enough that Libby's defense lawyers questioned whether it could be true. They suggested that Fitzgerald got a secret summary of Fleischer's testimony — a deal they want to discuss with jurors when Fleischer takes the stand against Libby on Monday.

Defense attorneys said they will ask U.S. District Judge Reggie B. Walton to force Fitzgerald to reveal what Fleischer promised him. Fitzgerald told Walton that no promises were made.

"We got no specifics," he said.