by John M. Curtis
(310) 204-8700

Copyright January 16, 2007
All Rights Reserved.

romising high drama, the trial of I. Lewis “Scooter” Libby—the former chief of staff for Vice President Dick Cheney—began in U.S. District Court, accused of lying to a grand jury about conversations with NBC's “Meet The Press” anchor Tim Russert and other journalists. Libby was fingered for outing former covert CIA operative Valerie Plame on July 10, 2003, only four days after her husband, former Iraq ambassador Joseph C. Wilson IV, criticized Bush July 6, 2003 in The New York Times, disputing White House claims in the Jan. 20, 2003 State of the Union message that Saddam Hussein tried to buy “yellocake” uranium from Niger. On July 16, 2003 syndicated columnist Robert C. Novak revealed Plame's CIA identity in his weekly column. Novak admitted, after released by his source, that former Deputy Defense Secretary Richard L. Armitage leaked Plame's idenity.

      Libby plans to excuse his “perjury” using the “faulty memory defense,” claiming he was overloaded when questioned by the grand jury under the direction of special counsel, U.S. Atty. Patrick J. Fitzgerald. By using the “faulty memory defense,” Libby hopes to convince a jury that frenzied activity impairs memory, leading to accidental false statements. U.S. District Court Judge Reggie B. Walton expects the trial to last six weeks, during which a dream defense team plans to eviscerate the Fitzgerald's case that Libby deliberately lied. While working for Cheney, Libby possessed a photographic memory and computer-like mind, now disputed by his claims of memory impairment. Fitzgerald convinced Judge Walton to preclude the defense from calling so-called “memory experts,” supporting Libby's claim that he suffered from a “faulty memory” syndrome.

      Fitzgerald's theory of Libby's case establishes “retaliation” as the motive for leaking Plame's identity. Fitzgerald charged no one with violating the federal law prohibiting outing of covert agents. Before Fitzgerald announced Libby's indictment Oct.29, 2005, all eyes were on President George W. Bush's chief strategist Karl Rove who apparently shared Plame's identity with several reporters. Unlike Libby, Rove didn't tell the grand jury he was passing on tips about Plame's identity gleaned from reporters. Like former President Bill Clinton who lied under oath in the Monica Lewinsky affair, Libby could have taken the Fifth but didn't. No one other than Libby was indicted by Fitzgeraled. And no one, including Libby, was charged with breaking the federal law protecting covert agents. Libby's indictment stemmed from concocting an elaborate story.

      Time Magazine reporter Matthew Cooper and former New York Times' reporter Judith Miller told Fitzgerald that Libby informed them about Plame's identity. Miller spent 85 days in jail for contempt, refusing to disclose her source. Russert testified that he was not the source of Plame's leak, something Libby told Fitzgerald. In an unprecedented event, Vice President Dick Cheney is expected to testify as a defense witness. Ironically, former Bush press secretary Ari Fleischer, will testify for the prosecution that Libby told him Plame's identity “on the q.t.” over lunch. Fitzergerald obtained evidence that White House personnel, including Bush chief political advisor Karl Rove, discussed Plame with journalists before Novak revealed her CIA indentity July 14, 2003. Unlike Rove, Libby got caught covering up how and with whom he shared Plame's identity.

      Libby's “faulty memory defense” might present problems at trial because he already accepted GOP talking points that Plame's identity was public information in Washington. If Libby acknowledged before that “everyone” in D.C. knew Plame's identity, it's difficult arguing the “busy man defense,” namely, he was too overloaded to remember what he told reporters or the grand jury. Libby's chief defense attorney Theodore Wells Jr. must convince jurors that the 56-year-old Yale undergraduate and Columbia Law graduate, who served with distinction in the Pentagon and State Department for presidents Reagan and Bush-41, suffered from memory impairments while Cheney's chief-of-staff. It's going to be a tough sell convincing jurors that “a dizzying panoply” of information caused Libby to answer the grand jury's questions inaccurately.

      If Wells admits that Libby answered Fitzgerald's questions inaccurately, he's admitting Libby didn't tell the truth and now offers excuses. Perjury requires intent, something Wells plans to challenge by introducing a plausible explanation, namely, that his client was overloaded. Clinton eluded perjury on the technicality that “I did not have sexual relations with that woman, Ms. Lewsinsky,” giving him an out because “sexual relations” meant intercourse. Libby won't have that luxury if he admits to giving faulty answers because of a bad memory. “I think that people who have been around government will regard this . . . as not being a frivolous defense,” said George Washington University law professor Stephen Saltzburg, admitting to stress when he worked for the State Department. Anyway you cut it, it's not going to be easy selling jurors on Libby's memory problems.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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