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I. Lewis “Scooter” Libby Jr. never meant to lie to the FBI or to a federal grand jury. Instead, his lawyers blame “confusion” or a “faulty memory” for his failure to disclose conversations he had with reporters about CIA operative Valerie Plame. In other words, he simply forgot. Given the hectic nature of his job as Vice President Dick Cheney’s chief of staff, Libby’s lawyers say, it’s understandable that their client might have failed to remember “snippets of conversation” he felt were unimportant. And even if he did talk to reporters about Plame, the defense argues, he had no motive to lie about it later because he didn’t know her status was classified and therefore was unaware he had done anything wrong. Then again, they contend, it might just be that the reporters who claim they talked to Libby about Plame are themselves confused. Little by little, Libby’s lawyers have revealed aspects of their defense in court filings and at pretrial hearings. They’ve indicated what players likely will be called as witnesses, and they’ve made requests for thousands of documents — actions that shed light on likely trial strategies. “It looks like the defense is going in a few directions, one of which is that Valerie Plame was so unimportant that even if Libby was mistaken, he didn’t intend to lie,” says Peter Henning, a former lawyer with the Justice Department’s Criminal Division and now a law professor at Wayne State University in Michigan. “It looks like they may also raise some challenges as to what was actually said in these fairly short conversations with reporters.” Libby is accused of lying to a grand jury and to FBI agents investigating claims that someone in the White House leaked Plame’s identity to the media in the summer of 2003 to retaliate against her husband, Joseph Wilson, an outspoken critic of the Iraq war. When questioned about his knowledge of the leak, Libby allegedly lied about how and when he learned of Plame’s CIA status, and with whom he discussed the classified information. So far, the investigation launched by Special Counsel Patrick Fitzgerald in the fall of 2003 has nabbed only Libby, who was indicted in October 2005 and immediately resigned from the White House. He faces felony charges of perjury, obstruction, and making false statements. His trial is set for January 2007 in the U.S. District Court for the District of Columbia. While Libby’s lawyers have hinted at various defenses they are likely to raise at trial, the crux of their case is clear: Any discussions their client might have had about Plame were so unimportant that he easily could have forgotten them. Perjury cases are particularly tough for prosecutors because they must prove a defendant blatantly lied — misleading statements are not grounds for a perjury conviction — and because they must prove intent, Henning says. That’s why perjury cases are relatively rare, he adds. Although the faulty-memory claim is sometimes successful, it could be a particularly difficult sell for Libby’s lawyers to make in this case, says Solomon Wisenberg, a criminal-defense lawyer with Wisenberg & Wisenberg in the District. “It looks like Fitzgerald will be able to present evidence . . . that this was such an important matter to the White House, and specifically to Libby, that professions of forgetfulness are not reasonable,” says Wisenberg, who served as deputy independent counsel during the Whitewater and Monica Lewinsky investigations and conducted the grand jury questioning of then-President Bill Clinton.
RELATED ARTICLES
• Scooter’s Club: Libby Getting Help to Raise Money for Defense (February 27, 2006)• Truth vs. Truth (January 23, 2006)• A Pardon for Libby? (December 19, 2005)• Libby’s List: Scooter Adds to His Defense Team (December 12, 2005)• Bringing the Hammer (November 7, 2005)• After Charges, Fitzgerald Team Presses On (October 31, 2005)• And the Gods Snickered (October 31, 2005)• The Outsider (October 24, 2005)

The prosecution is expected to call a number of former and current government officials — including Cheney and former White House Press Secretary Ari Fleischer — who allegedly had conversations with Libby about Plame’s CIA status in the weeks before her identity was published in an article by syndicated columnist Robert Novak. Other witnesses likely to be called by the prosecution include former New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper — both of whom say they were told of Plame’s CIA status by Libby — as well as NBC journalist Tim Russert. Libby testified before the grand jury that it was Russert who first told him Plame worked for the CIA. Russert denies that claim. Although it’s common for perjury defendants to blame a faulty memory for any misstatements, that strategy is far from a sure thing. It’s especially risky in a major political-corruption case, where there are dozens of witnesses ready to counter that claim. During the Watergate scandal, President Richard Nixon advised aides to say “I don’t remember” when they testified before the Senate Watergate Committee. Subsequently, John Mitchell, Nixon’s attorney general, H.R. Haldeman, his chief of staff, and John Erlichman, a policy adviser, all were convicted of perjury. In Libby’s case, Wisenberg says, “It will be a really significant victory if they can pull it off.” Even Libby’s defense team — led by two prominent white collar defense lawyers — acknowledges they face a difficult fight. “I’ve got a tough haul in front of this jury,” attorney Theodore Wells Jr. proclaimed during a May 5 motion hearing in which he sought discovery to help build Libby’s defense. Libby hired Wells, a partner with Paul, Weiss, Rifkind, Wharton & Garrison, along with William Jeffress Jr., a partner with Baker Botts, to represent him shortly after he was indicted. The pair has since launched an aggressive campaign to portray Libby as a dedicated public servant who, during his tenure at the White House, was consumed with issues of national importance. Wells did not respond to a request for comment, and Jeffress declined to comment, saying, “The judge has indicated that he would prefer that counsel not discuss the case with reporters and we have decided we should honor that request.” As Cheney’s chief of staff, Libby often was focused on homeland security and the war in Iraq, frequently working 14 hours a day and reading up to 200 pages of material daily, according to his grand jury testimony. To corroborate the defense that Libby was too busy to remember any “peripheral” conversations, his attorneys have sought a trove of government documents, including hundreds of White House briefings, intended to convey the workload Libby confronted. But Fitzgerald claims this and other requests for vast amounts of paperwork, much of which is classified, are an attempt to derail the case through “graymail.” The term “graymail” refers to a tactic used by government officials facing criminal charges who attempt to halt their prosecution by exposing national-security secrets. It could prove to be a successful strategy in this case, some observers say, noting that if Libby is denied access to discovery and convicted, there could be grounds for appeal. “It’s definitely a pretrial strategy, and it’s a good strategy that might work,” Wisenberg says. One potential defense that is rather unorthodox is the Libby team’s suggestion that some of the government’s witnesses are unreliable. Specifically, the defense argues reporters Cooper and Miller might be confused about what actually was said during their conversations with Libby. The defense subpoenaed reporters’ notes and drafts of stories related to the CIA leak, hoping to find inconsistencies between what reporters wrote and what they told the grand jury. After reviewing the documents last month, Judge Reggie Walton ordered Time to turn over an unpublished draft that Cooper wrote about his testimony. The draft differs slightly from other versions of the story. Walton indicated he might eventually order The New York Times to turn over Miller’s notes if what she says at trial differs from what is written. The judge, however, rejected the defense’s request to subpoena additional materials from NBC. In addition to questioning the reporters’ reliability, the defense claims some former and current government officials likely to be called as witnesses by the prosecution might be biased as a result of “fierce bureaucratic infighting” among officials at the White House, State Department, and CIA. One such witness, according to the defense, is Mark Grossman, former undersecretary at the Department of State. The defense points out that in recent months there has been media speculation that Grossman’s former boss at the State Department, Richard Armitage, might have been the source who leaked Plame’s identity to Novak. That would mean the department — not Libby — is responsible for the leak. “Grossman’s testimony may be colored by either his personal relationship with Mr. Armitage or his concern for the institutional interests of the State Department,” the defense writes in court papers. Libby’s lawyers have requested any documents from the files of Grossman and other likely government witnesses that pertain to the CIA leak investigation or to Wilson’s claims that the administration exaggerated intelligence to justify going to war. During the May 5 motion hearing, Wells argued it was necessary for the defense to show Wilson made false statements. “The wife’s role becomes minor when you see what was really going on,” Wells said at the hearing. But Walton wasn’t convinced: “I’m just not going to let this case end up being a judicial resolution on the legitimacy of the war.” On June 2, Walton issued an opinion largely denying the defense’s discovery request for documents pertaining to Wilson. CHENEY MADE ME DO IT On July 6, 2003, Wilson published an op-ed in The New York Times debunking reports that Iraq had attempted to buy uranium from Niger and accusing the administration of twisting prewar intelligence. The editorial, entitled “What I Didn’t Find in Niger,” sparked a political firestorm, prompting Cheney’s office to refute Wilson’s claims and attack his credibility. But Libby’s lawyers maintain their client was focused on correcting the public record, not on Plame. To challenge that assertion, Fitzgerald plans to call Cheney to testify. If the vice president is called, experts say it’s unlikely he would be able to dodge providing testimony by citing executive privilege. Fitzgerald also intends to introduce as evidence a copy of the Wilson op-ed bearing handwritten notes by Cheney. Those notes, according to Fitzgerald, reflect the “contemporaneous reaction” of the vice president and his chief of staff. One notation questions whether Wilson’s wife sent him to Niger, suggesting her CIA status was an issue. “The government will argue the vice president’s involvement would have made the whole matter so salient to Libby that anything he said to investigators would have been incredibly thought out, not haphazard and forgetful,” says Dan Richman, a law professor at Fordham University and a former federal prosecutor in the Southern District of New York. But Richman says it’s possible Libby’s lawyers might use Cheney’s testimony to their own advantage. “I think there will be an effort by Libby to portray himself as a sacrificial lamb of higher-ups — that he was sort of put in a bad place and forced to protect others,” he says. “If done right, it could lead jurors to have some sympathy for him.”


Sarah Kelley can be contacted at [email protected].

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