Libby Attorney Hints At Defense
The lawyer for Vice President Dick Cheney's former top aide is outlining a possible criminal defense that is a time-honored tradition in Washington scandals: A busy official immersed in important duties cannot reasonably be expected to remember details of long-ago conversations.
Friday's indictment of
Libby, who resigned immediately, was operating amid "the hectic rush of issues and events at a busy time for our government," according to a statement released by his attorney, Joseph Tate.
"We are quite distressed the special counsel (Patrick Fitzgerald) has not sought to pursue alleged inconsistencies in Mr. Libby's recollection and those of others and to charge such inconsistencies as false statements," Tate continued.
"As lawyers, we recognize that a person's recollection and memory of events will not always match those of other people, particularly when they are asked to testify months after the events occurred."
the Special Counsel's statement (.pdf).
The lack-of-memory defense has worked with varying degrees of success in controversies from Iran-Contra to Whitewater.
Only one person went to prison in the Iran-Contra affair, although several people pleaded guilty to making false statements. President Clinton and his wife, Hillary, were cleared in the Whitewater investigation of fraudulent land deals in Arkansas, a subject well-suited to a lack-of-memory defense. The land deals took place a decade before they came under criminal investigation.
Tate referred to another possible line of defense, saying that "for five years, through difficult times, Mr. Libby has done his best to serve our country." That argument worked in the administration of President George H.W. Bush in 1992, though not in court.
Bush pardoned those in government who had been implicated in the Iran-Contra criminal investigation. Among others, the pardons went to former Defense Secretary Caspar Weinberger, whose trial was scuttled.
The case against Libby: He testified that he learned from NBC correspondent Tim Russert the identity of a covert CIA officer who is the wife of Bush administration critic Joseph Wilson. Russert says they never discussed it.
The facts,
But Libby told the FBI and the grand jury that he informed reporters Matt Cooper of Time magazine and Judith Miller of The New York Times information about Wilson's wife that he had gotten from other reporters, information that Libby said he did not know to be true. Libby testified that he told the reporters he did not even know if Wilson had a wife.
But Fitzgerald said that rather than being at the end of a chain of phone calls from reporters, Libby "was at the beginning of the chain of phone calls, the first official to disclose this information outside the government to a reporter. And then he lied about it afterwards."
The indictment points to interesting behavior by Libby that changed once Wilson went public with his criticism of the current Bush administration. The former ambassador accused the administration of twisting pre-war intelligence on Iraq's nuclear weapons program to exaggerate the Iraqi threat.
Early on, the indictment said, Libby became concerned about an article in The New Republic magazine that referred to Wilson, though not by name, as having gone to Africa for the CIA to investigate allegations that Iraq had sought uranium from Niger. The unnamed ambassador was quoted as saying the "Niger story was a flat-out lie."
The indictment said Libby told his deputy there would be complications at the CIA in disclosing information about the trip and that Libby could not discuss the matter on a non-secure telephone line."
After Wilson criticized the Bush administration on NBC's "Meet the Press," Libby had lunch with then-White House press secretary Ari Fleischer and advised him that Wilson's wife worked for the CIA and noted that such information was not widely known, the indictment said.
It said Libby proceeded to spread it more aggressively than he had previously.
CBS News correspondent Joie Chen reports that with the indictment of Libby and the future of President Bush's key advisor, Karl Rove, still in doubt, this has been an for the president.
Fitzgerald wouldn't comment about the possible involvement of Rove, who remains under investigation.
But Fitzgerald made clear his investigation is not over.
CBS News chief White House correspondent John Roberts reports that Fitzgerald wants to know why Karl Rove didn't tell the grand jury about a telephone conversation with Time reporter Matt Cooper in which he identified CIA agent, Valerie Plame. Rove's legal team hopes to convince the prosecutor it was an honest omission.
Wayne Slater, the co-author of "Rove Exposed," told the CBS Evening News that Rove has been a trusted adviser to Mr. Bush since the beginning of his presidency, and an indictment would be "devastating."
"Without Rove, the president has a real problem," Slater said.
CBS News legal analyst Andrew Cohen reports that Libby's indictment "makes it very likely, almost a certainty" that Cheney will have to testify in the criminal trial against Libby.
If so, Cheney, who prizes secrecy, will be called upon as a witness to explain why the administration launched a campaign against Plame's husband, diplomat Joseph Wilson, a critic of the war who questioned Mr. Bush's assertion that Iraq had sought nuclear material.
Wilson, who spoke to 60 Minutes correspondent Ed Bradley in his first interview since Libby's indictment, said that his wife has been threatened.
"There have been specific threats [against Plame]. Beyond that, I just can't go," Wilson tells Bradley.
Libby is learning one Washington lesson the hard way: Don't do battle with people who run covert operations for a living.
The bad blood between the White House and CIA has been known for some time. But the 22-page indictment of Libby displays just how nasty relations had become between senior White House officials and the nation's spy chiefs.
Differences between the CIA and the White House over Iraq date back to the 1991 Persian Gulf War. Officials working for then-President George H.W. Bush faulted the intelligence community for failing to recognize how far Saddam Hussein had gotten in his nuclear weapons program.
When many of the same personalities returned to the White House under President Bush, they may have questioned whether this time the CIA could get it right as it investigated Saddam's arsenal and his possible connections to terrorists.
The tensions continued through the summer of 2004, when the CIA permitted the former head of its Osama bin Laden unit, Michael Scheuer, to publish a book entitled "Imperial Hubris: Why the West is Losing the War on Terror." The book included criticism of the 2003 Iraq invasion.
It's unclear if Friday's indictment of Libby will help conclude a rocky chapter of White House-CIA relations or further enflame the situation. However, many senior CIA officials who were directly involved with the White House left the agency after George Tenet stepped down as director in July 2004.
The CIA responded to questions about its current relationship with the White House in a written statement.
"CIA's mission is to provide the president and other leaders of our government with the best possible foreign intelligence to help keep our nation safe and strong," CIA spokesman Paul Gimigliano said.
"That's what gets the people of this agency fired up to come to work every day. They know that the president appreciates the job that they do."
In contrast, former CIA official Lee Strickland, who was responsible for all disclosure activities at the CIA as chief of its information review group, said he can't recall a time in his 30 years at the agency when there was so much tension with the White House.
He said the situation highlights problems with the politicization of intelligence. "You want to keep the politics separate from the intelligence," he said.
But, Strickland added, the resulting disclosure of a covert operative's identity is not "an insignificant political matter, the tit-for-tat in politics." Rather, he said, blowing an operative's identity can jeopardize any number of intelligence contacts and recruits.
"In essence, you endanger any operation that this officer has touched, any person that this officer has touched," he said.
House Intelligence Chairman Peter Hoekstra, R-Mich., said his panel is looking into leaks and whether changes in the law are needed, including adjustments in the 1982 Intelligence Identities Protection Act. Libby was not charged under that law.