Libby's attorneys seek to dismiss indictment

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Vice President Dick Cheney's former chief of staff asked a judge yesterday to dismiss an indictment brought against him by a special prosecutor, saying the prosecutor lacked authority under the Constitution and federal guidelines to bring the charges.

Attorneys for I. Lewis "Scooter" Libby said that special counsel Patrick J. Fitzgerald's December 2003 appointment by Deputy Attorney General James B. Comey never was approved by the Senate as required by the Constitution and that his investigation never received the required direction and supervision outlined in federal rules.

"Acting without any direction or supervision, Mr. Fitzgerald alone decides where the interests of the United States lie in an investigation that involves national security, the First Amendment and important political questions," said a 40-page motion filed in U.S. District Court in Washington.

"He alone decides which individuals to subject to investigation, what evidence will be obtained or not obtained, and whether or not continued investigation and prosecution are warranted," it said. "He is subject to no oversight and has no obligation to comply with Department of Justice policies and regulations that constrain the exercise of law enforcement powers in all other federal cases."

Mr. Fitzgerald was appointed after Attorney General John Ashcroft recused himself in the case because of his close relationships with White House officials.

Mr. Libby, 55, is accused of lying to investigators and a federal grand jury about whether he was the source of information on the CIA identity of Valerie Plame, wife of Iraq war critic and diplomat Joseph C. Wilson IV. If convicted, Mr. Libby faces up to 30 years in prison.

The indictment said Mr. Libby obtained information on Mrs. Plame's identity in June 2003 -- after her husband accused the Bush administration of fabricating intelligence data to justify the Iraq war -- from Mr. Cheney, the State Department and the CIA. It said Mr. Libby passed the information to New York Times reporter Judith Miller and Time magazine reporter Matt Cooper.

Mr. Libby, in interviews with the FBI and in testimony before the grand jury, said he had obtained the information on Mrs. Plame from NBC newsman Tim Russert, an accusation Mr. Russert denied.

Mrs. Plame's identity was revealed in an article by conservative columnist Robert Novak.

Mr. Libby is charged with one count of obstruction of justice, two counts of lying to FBI agents and two counts of perjury before a federal grand jury.

In the motion, defense attorneys Theodore V. Wells Jr., Williams H. Jeffress Jr., Joseph A. Tate and John D. Cline argued that Mr. Fitzgerald's actions in bringing the indictment were grounds for its dismissal.

Mr. Libby, who resigned his White House post after the indictment was handed up, has pleaded not guilty in the case. Trial is set to begin January.