It may be four months away, but already there are signs that the first trial to emerge from the three-year, $1.5 million, CIA/Leak probe may be an uphill battle for Patrick Fitzgerald, a meticulous prosecutor known for his stellar winning record.
Memory and alleged "misremembering," may prove pivotal elements in the upcoming trial of Vice President Dick Cheney's former top aide, I Lewis "Scooter" Libby, according to legal experts examination of probable defense strategies.
The possible testimony of the State Department's former number two official, and that of the first journalist to print the name Valerie Plame Wilson, could potentially sway a jury that there is reasonable doubt to the perjury charges against Libby. He is charged with five counts of lying to the FBI and a federal grand jury about how he learned about Plame and when he subsequently told three reporters about her.
Truth and consequences
In a bombshell announcement, which took nearly three years to come out, former State Department official Richard Armitage on Sept. 7th, publicly admitted that he was the first to leak the identity of Plame to reporters. Though Fitzgerald knew that, he chose to keep it secret. Now, can Libby benefit by the Armitage admission? Experts say yes and no.
They point out that the issue in the Libby trial is not who was the first to disclose Plame's identity to a reporter, but rather whether Libby told investigators the truth about his conversations with reporters. However, Armitage and columnist Robert Novak, whose statements about Plame are in disagreement, could enable Libby to argue that he, Libby, wasn't the only one confused in this case.
Emotion and relevance come into play
We asked two former prosecutors to layout the possible scenarios of Armitage's testimony before a federal jury in Libby's trial, now scheduled to begin on January 17, 2007. Armitage is listed as a possible prosecution witness at the trial.
Solomon Weisenberg, a former prosecutor who worked with Ken Starr on the Monica Lewinsky/Bill Clinton investigation, says Libby's attorney's can take full advantage of the emotional value of Armitage's admission. He says that while Armitage is not part of the case against Libby, he could open the door for the defense to argue that Fitzgerald conducted a sloppy investigation and has several witnesses who contradict each other.
Another former prosecutor, Larry Barcella, says that because the charges against Libby are all about lying, the issue of whether Armitage gave information about Plame to Novak deliberately or accidentally is irrelevant.
CIA leak background
In July 2003, Armitage told columnist Novak that former Ambassador Joe Wilson's wife worked for the CIA. Novak mentioned it in a column on July 14, 2003. It's a crime to knowingly reveal the identity of an undercover CIA officer. But Armitage didn't yet realize what he had done.
Armitage told CBS News, "At the end of a wide-ranging interview he (Novak) asked me, 'why did the CIA send Ambassador (Wilson) to Africa?' I said I didn't know, but that she worked out at the agency."
Armitage says he told Novak because, it was, "just an offhand question. I didn't put any big import on it and I just answered and it was the last question we had," he says.
Not idle chitchat
But in his recent column Sept. 14, 2006, Novak says Armitage is sugarcoating the actual events. Novak writes the former State Department official had a motive, "Armitage did not slip me this information as idle chitchat, as he now suggests. He made clear he considered it especially suited for my column."
Novak says Armitage gave him specific details of Plame's employment, and her involvement in sending her husband to Niger. Novak writes, "he identified to me the CIA division where Mrs. Wilson worked, and said flatly that she recommended the mission to Niger by her husband, former Ambassador Joseph Wilson."
Armitage says he made a terrible mistake in revealing Plame's employer at the time. He says, "Oh I feel terrible. Every day, I think I let down the president. I let down the Secretary of State. I let down my department, my family and I also let down Mr. and Mrs. Wilson."
But he points out, he didn't even know Plame's name. "I didn't know the woman's name was Plame. I didn't know she was an operative," he says.
Muddling the timeline
These conflicting accounts of how Armitage passed Plame's name to Novak will likely be brought out at trial according to legal experts. The disagreement in this account could also muddle the entire timeline of events which the Special Counsel will likely present to the jury.
And more details of the exchange between Armitage and Novak were revealed in a court filing by the Wilson's themselves when they named Armitage as a defendant in their civil suit along with Vice President Cheney, Karl Rove and Libby. They write that Armitage possessed a memo that specifically mentioned Plame. Attorney's for the Wilson's write, "The memorandum was stamped "Secret" and the paragraph that mentioned Mrs. Wilson was prefaced with the letters "S/NF" meaning Secret/No Foreign. In other words, the information was classified and too sensitive to be shared with foreigners."
Early in the CIA/Leak probe, Armitage told investigators he was Novak's source. He says months after his meeting with Novak he was re-reading Novak's July 2003 newspaper column and on Oct. 1, 2003, it dawned on him that, when Novak wrote, "he was told by a non-partisan gun slinger," that passage referred to him.
"I almost immediately called Secretary Powell and said, 'I'm sure that was me,'" Armitage says. Armitage then immediately met with FBI agents who were beginning to investigate the leak. "I told them that I was the inadvertent leak," Armitage says. He didn't get a lawyer, however.
And, when Libby was indicted on October 28, 2005, Fitzgerald said, at a news conference at the Justice Department, that it was Libby who was the first official to discuss Plame. That leak, Fitzgerald said, came in a conversation with New York Times reporter Judith Miller on June 23, 2003.
It wasn't until after Fitzgerald's news conference in October, that Washington Post reporter Bob Woodward reminded Armitage that he had made a passing comment to him about Plame just days before Libby's conversation with Miller in June. That meant that Armitage, not Libby, had been the first to mention Plame to a reporter. Armitage said he quickly informed Fitzgerald of that recollection. Armitage had spoken to FBI investigators and testified before the grand jury about his conversation with Novak. But had forgotten, until reminded by Woodward, about a conversation he had with him about Plame.
Memory lapses and factual distortions?
Weisenberg says Armitage's lapse in memory - on the meeting with Woodward, which occurred prior to speaking with Novak - can be exploited by Libby's lawyers to a Washington jury. He says Armitage's memory lapse about Woodward may put doubt in the mind of the jury that Libby was the only person to have "misremembered" the facts and chronology of the leak to reporters.
Special Counsel Fitzgerald asked Armitage not to say anything publicly about his conversations with Woodward and Novak until he was allowed to speak with CBS recently.
Victoria Toensing writes in an op-ed in the Wall Street Journal, "when the FBI interviewed Mr. Armitage on Oct. 2, he admitted to the Novak conversation only, notably forgetting meeting with one of our country's premier investigative reporters." Toensing, a Libby defender, also writes, "By his silence, Mr. Armitage is responsible for one of the most factually distorted investigations in history."
Misrecollected facts
Barcella does not feel that Armitage finally admitting he was the primary source of Plame to Novak and Woodward will have any legal effect in the Libby trial. Libby has asked Judge Reggie Walton to allow him to use UCLA psychologist Dr. Robert Bjork as an expert witness on memory.
Libby's attorneys write that their reason to explain to the jury what their client and other witnesses were doing in June and July of 2003, responding to Wilson's damaging New York Times op-ed, is for a jury to "understand that Mr. Libby may have been confused or may have misrecollected facts in good faith, and did not act with a specific intent to give false testimony." They write that only with such context will the jury appreciate that "Mr. Libby did not need to attack Mr. Wilson personally to rebut his allegations, because the administration had clear factual support for its position that Mr. Wilson's criticisms were wrong."
Also, Libby's attorney's have signaled that they may delve deeply into interagency infighting, what they call, "finger-pointing" among the White House, the CIA and the State Department over pre-Iraq war intelligence failures.
Weisenberg further says, Libby attorney Ted Well's can also exploit to a jury how the "hatred between government agencies, the finger-pointing on who was to blame for the 16 words in the State of the Union address," could also have been ample motivation for Armitage to reveal Plame's role in sending her husband to Africa. This, an attempt to debunk the argument made by Fitzgerald that only within the executive branch was there an orchestrated effort to discredit Joe Wilson which included outing his wife to reporters.
Political embarassment
The Libby defense team has stated that in June and July 2003, Plame's CIA status was at most a peripheral issue to "the finger-pointing that went on within the executive branch about who was to blame" for the failure to find weapons of mass destruction in Iraq.
Court papers filed by Libby's lawyers distinctly raise the possibility a trial could become politically embarrassing for the Bush administration by focusing on the debate within the administration about whether the White House manipulated intelligence to justify the U.S.-led invasion of Iraq in March 2003. Judge Walton has said in court that he does not intend for the Libby trial to become a forum for debating the justification for the Iraq war.
"If the jury learns this background information" about finger-pointing, Libby's lawyers write, "and also understands Libby's focus on urgent national security matters, the jury will more easily appreciate how Mr. Libby may have forgotten or misremembered ... snippets of conversation" about Plame's CIA status.
Evidence hurdles
Later this month Judge Walton has ordered a series of closed hearings to determine if Libby can use certain classified information as a defense during his trial in the CIA/Leak case.
Libby's attorneys have requested and have been given in recent weeks two batches of summaries and redacted versions of classified morning intelligence briefings which Libby attended with Cheney in 2003 in order to prepare his defense.
So there remains a series of legal hurdles for Libby's attorney's before they can use excerpts of classified briefings to illustrate at trial the tumultuous atmosphere in the administration during that crucial period in the summer of 2003 when Valerie Plame Wilson's name emerged to become a household word.