First Witnesses May Bolster Libby Defense

Testimony last week from Bush administration officials made clear that Vice President Dick Cheney’s former chief of staff isn’t the only one claiming a hazy recollection of how and when he learned that Valerie Plame, the wife of Bush critic Joseph Wilson, worked at the CIA.

Perjury cases are notoriously difficult. But the inconsistencies of the prosecution’s first few witnesses point to the significant challenge Special Counsel Patrick Fitzgerald faces in building his case against Libby.

The witnesses’ testimony at the U.S. District Court for the District of Columbia may also bolster one of Libby’s central defenses: that he simply forgot about Plame because he was too preoccupied with weighty national-security matters.

Libby, 56, is charged with five felony counts of false statements, obstruction of justice, and perjury in connection with what he told the FBI and a grand jury about conversations he had with three reporters in July 2003. He was the only person charged as a result of Fitzgerald’s 2 1/2-year investigation into whether classified information about Plame’s CIA employment was illegally leaked to the media.

Prosecutors say Libby began asking questions about Wilson in May 2003 — after the former ambassador was an unnamed source in a New York Times column that questioned the credibility of Cheney’s role in developing the administration’s rationale for invading Iraq. Libby first learned Wilson’s wife was employed at the CIA in early June 2003 from Cheney and discussed her CIA employment with six other government officials in the following days and month before disclosing her name to reporters in early July.

Libby does not dispute that he initially heard about Plame from Cheney. But he claims he had no recollection of this, and he told the FBI in October 2003 and the grand jury in March 2004 that he first learned about Plame one month later, in a conversation with NBC’s Tim Russert — something Russert disputes.

Those assertions make the sequence of events between May and July 2003 critical for Fitzgerald’s case.

TAKING THE STAND

To launch their case, prosecutors tried to establish that Libby was curious about Wilson and his wife in the month leading up to his July conversations with reporters. So they ushered in four current and former Bush administration officials, who detailed discussions with Libby about Plame in early June 2003.

Libby, they said, was intensely interested in Wilson, who had begun telling reporters that Cheney had ignored the findings of a 2002 fact-finding mission that questioned a key basis for attacking Iraq: that Saddam Hussein had tried to acquire uranium in Niger. Libby believed his claims about Cheney were unfounded and worked tirelessly and closely with Cheney to rebut Wilson in the media.

But under questioning, the witnesses chipped away at their own credibility — and perhaps damaged a key prong of the prosecution’s case — by admitting they forgot significant details of these conversations — and, in some cases, the entire conversation — when first questioned by federal investigators.

And although Libby was clearly focused on Wilson, none of the witnesses could recall Libby asking them for information about Plame.

Indeed, three of the witnesses testified that they had been the ones to raise the question of Plame’s CIA employment with Libby. Only one indicated that Libby had brought up Wilson’s wife himself, but that witness, former CIA briefer Craig Schmall, had no independent recollection of that conversation besides a note mentioning Plame’s name on one of his June 14 daily briefings to Libby. (Schmall didn’t find this note until after his grand-jury testimony, when a CIA lawyer directed him to review his papers.)

The ferocity of the defense efforts to push the memory questions were clear during Schmall’s testimony, when Fitzgerald accused the defense of trying to get in details of Libby’s memory defense so that he wouldn’t have to testify. (Judge Reggie Walton quickly made clear the memory argument wouldn’t work if Libby did not testify.)

REMEMBERING THE TRUTH

Take, for instance, the testimony from Robert Grenier, the CIA’s top official on Iraq. In the early afternoon of June 11, 2003, Grenier got a call from an agitated Libby, wondering why Wilson was telling reporters about being sent on a fact-finding mission at the behest of the vice president’s office to investigate whether Iraq had tried to buy uranium from Niger.

Grenier, who said he’d never received a phone call from Libby, took the request seriously. He hadn’t heard of Wilson, but he called the CIA’s nuclear proliferation division, from which he learned Wilson had not been sent only at the request of Cheney’s office. The State and Defense departments had inquired, too.

Grenier didn’t get back to Libby immediately, but Libby couldn’t wait. He called Grenier later that afternoon, pulling the No. 3 CIA official out of a briefing with the director. “I was a bit chagrined,” Grenier testified Jan. 24. But he got on the phone and explained who Wilson was, including a special tidbit: that Wilson’s wife worked in the counterproliferation division and had been instrumental in choosing him for the mission.

But Grenier hadn’t always remembered that discussion so clearly. When he was first questioned by the FBI in the fall of 2003, he said he didn’t remember telling Libby about Plame. When he appeared before the grand jury the following spring, he said he didn’t think he’d mentioned Wilson’s wife to Libby, although he hedged.

It wasn’t until more than a year later that he came forward to federal investigators with this account.

How did the 27-year CIA veteran explain himself? Over time, Grenier said, “What I did remember again was how I felt after that conversation [with Libby]. I recall feeling briefly guilty. . . . I developed the growing conviction that I had said it.” Defense lawyer William Jeffress found this explanation spurious. “Do you find your memory gets better the further away you are from an event?” he asked. Grenier smiled and said, “I guess it all depends.” Jeffress pressed again. “What prompted you to think about it further?” he asked. Grenier paused. “I was concerned about having revealed this information to Mr. Libby. I felt that I shouldn’t have done it. I felt that it was a mistake.”

The story from former Undersecretary of State Marc Grossman, the government’s first witness, posed other inconsistencies. He, too, had learned about Plame after Libby asked him to look into Wilson’s Niger trip during a May 29 meeting. By June 9, Grossman received a report with further details about Wilson, which noted Plame’s role in choosing Wilson for the CIA mission. Grossman found this fact “pretty remarkable” and said he mentioned it to Libby at a meeting a few days later.

But not every detail of that testimony matched up with what Grossman had told investigators. Another defense attorney, Theodore Wells Jr., noted that Grossman told investigators and the grand jury this conversation had occurred over the phone. “All I can tell you is that they were face-to-face meetings,” Grossman testified Jan. 24. Wells also pointed out that Grossman first told the FBI he had learned about Wilson’s wife before he received the detailed report. Grossman’s reply: “If I did so, then I would have been wrong, sir.”

To some contradictions, Grossman gave no explanation. For instance, he admitted that he did not tell investigators that he knew the State Department’s report on Wilson’s trip was faxed to his boss, then-Deputy Secretary of State Richard Armitage. And Grossman acknowledged that he had not told investigators that he spoke with then-Secretary of State Colin Powell about his conversations with Libby.

IMPERFECT TIMING

Even the most consistent witnesses had gaps in their memory. Cathie Martin, the former chief of public affairs for the vice president’s office, recalled learning about Wilson’s wife in a conversation coordinating a media response to Wilson with then-CIA spokesman Bill Harlow. Unlike Grenier and Grossman, she took notes of this fact, which helped bolster her credibility.

Martin, a loyal Republican recruited by the party’s legendary strategist Mary Matalin, also knew Cheney would find this interesting and went immediately in to see him. Libby, not unsurprisingly, she noted, was also in the room. “I said I’d spoken with Harlow, that he’d told me his name was Wilson, and apparently his wife works at the CIA,” Martin testified Jan. 25.

But Martin said she had trouble remembering the exact date she spoke with Harlow about Wilson and Plame. All she could say was that it must have been before Wilson appeared on the July 6 NBC show “Meet the Press,” although phone records and testimony presented at trial indicate the conversation occurred in early June. And when she first talked to the FBI in October 2003, she placed her conversation with Harlow on July 9, more than a month after it probably occurred. “At first I thought everything happened on the week of July 7,” she said. “But then I realized that I knew Wilson on the date of �Meet the Press.’ I knew his name. And so I knew something had to have happened before.”

So, defense attorney Wells asked, “you forgot an entire month in which you knew it?” Martin gave Wells a knowing glance and said, “Correct.”

How much these inconsistencies will hurt the prosecution is unclear. This week, former White House press secretary Ari Fleischer is expected to take the stand to explain that he spoke with Libby about Plame’s CIA employment during lunch on July 7 — the very week Libby spoke with the three reporters and the day after Wilson stepped up the pressure on Cheney by attacking him on “Meet the Press.”

The three reporters — Time magazine’s Matthew Cooper, former New York Times reporter Judith Miller, and Russert — are expected to follow and contradict Libby’s account of their July 2003 conversations.