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Cheney to be witness in Libby CIA leak trial

Judge Reggie B. Walton (L) hears about potential witnesses from (L to R) Defense Attorney Ted Wells and Special Prosecutor Patrick Fitzgerald, while I. Lewis "Scooter" Libby sits in the background at a hearing surrounding the investigation into the leak of a CIA agent’s name to the public.
Judge Reggie B. Walton (L) hears about potential witnesses from (L to R) Defense Attorney Ted Wells and Special Prosecutor Patrick Fitzgerald, while I. Lewis "Scooter" Libby sits in the background at a hearing surrounding the investigation into the leak of a CIA agent’s name to the public.Art Lien / NBC News
/ Source: NBC News

Vice President Dick Cheney will be called as a defense witness in the CIA leak case, of his former chief of staff, I Lewis "Scooter Libby, Libby's attorney told a federal judge today.

"We're calling the vice president," attorney Ted Wells said in a court hearing. After the hearing another attorney for Libby, William Jeffress said he does not expect the Vice President to resist testifying at the trial scheduled to begin in January. Special Counsel Patrick Fitzgerald, responded by saying, "That settles that." Fitzgerald had said that he did not expect to call Cheney as a witness.

"We don't expect him to resist," Jeffress said of Cheney's proposed testimony.

Fitzgerald said earlier this week that he did not expect the White House to resist if Cheney or other administration officials are called to testify.

The Vice President himself has said in a CNN interview in June, "I may be called as a witness."

First vice presidential witness?
Cheney's spokeswoman LeAnn McBride said in a statement, "We've cooperated fully in this matter and will continue to do so. In fairness to the parties involved and as we've stated previously, we're not going to comment further on a legal proceeding."

Wells did not say whether Cheney will appear in the courtroom to testify or if his testimony would be done in an other way, like a deposition or taped testimony.

Legal experts called by NBC News said they were surprised by Cheney not resisting testifying, citing personal and institutional reasons.

The Special Counsel, in a status report this week, only says that he, "is not aware of any government witness who is intending to assert a blanket privilege, and the government does not otherwise anticipate any of its witnesses moving to quash or limit trial subpoenas, " according to the court filing.

Fitzgerald also wrote that he does not intend to examine any witnesses on any topic for which, "we expect an assertion of privilege."

If Cheney appears in the courtroom, he would be the first sitting Vice President to testify at court in a criminal case, according to legal experts.

Cheney, who was Libby's boss at the White House, has said recently in interviews on CNN and FOX News that Libby is "one of the finest men I've ever known," and "He is a great guy. I worked with him for a long time. I have tremendous regard for him."

A series of court filings in the CIA leak case provide details of Cheney's role at the center of an administration effort to rebut an outspoken critic of the White House's rationale for the Iraq war in the summer of 2003.

Libby is charged with lying to investigators and a grand jury about his conversations with journalists regarding former CIA operative Valerie Plame.

Plame is the wife of Ambassador Joseph Wilson and worked for the CIA when her husband was sent by the agency to Niger to investigate claims that Iraq was seeking yellowcake for a nuclear program.  Wilson wrote an op-ed in the New York Times, titled, "What I Didn't Find in Africa," that the Bush administration somehow, "twisted" some intelligence about Iraq's nuclear weapons program.

Fitzgerald offered new details of Cheney's reaction to the article when he filed in court several months ago the handwritten annotations on the newspaper clipping by Cheney himself.

Fitzgerald argues that Wilson's article itself lies at the center of the sequence of events leading to I Lewis "Scooter" Libby's alleged criminal conduct.

The annotated version of the article shows handwritten notes at the top, and underscores within the article by Cheney, that Fitzgerald says reveal the harsh reaction the Vice President had to Wilson's assertions about U.S. intelligence on Iraq's weapons of mass destruction.

The notes by Cheney seemingly question the CIA's motivation for sending Wilson on the fact finding trip to Niger.  Cheney writes, "Have they done this sort of thing before?  Send an Ambr (ambassador) to answer a question? Do we ordinarily send people out pro bono to work for us? Or did his wife send him on a junket?"

Additional witnesses
Libby's attorneys also indicated today that they did not intend to call Wilson as a defense witness.

In addition to Cheney, other government officials and  journalists are expected to be key witnesses in the trial, which is expected to last six weeks.

Former New York Times reporter Judith Miller and NBC News Washington bureau chief Tim Russert are expected to be prosecution witnesses. Libby's lawyers said in court papers that several reporters will testify on Libby's behalf.

(MSNBC is owned, in part, by NBC News.)

Two unidentified reporters may resist testifying, Libby's attorneys said, but they expect to resolve that issue before trial.

Libby also has sought a subpoena for the tape of Washington Post reporter Bob Woodward's interview with former Deputy Secretary of State Richard Armitage. Armitage has admitted he discussed Plame's job with Woodward in 2003 but said it was a passing, inadvertent comment.

If admitted into evidence, the tape could be played at trial. The tape has been turned over to prosecutors, and Libby's attorneys said they expect no objection to their subpoena.

Neither Libby nor Fitzgerald has asserted that Cheney directed Libby to leak Plame's name to reporters.  Cheney and President Bush were interviewed at the White House by the prosecutor's office in June 2004, but details of what they said have not been disclosed. Both the President and Vice President were not under oath when they spoke to investigators.

White House response at issue
Cheney would be the trial's most anticipated witness. If called,to testify, prosecutors could ask how the White House responded to Wilson's criticisms. Cheney was upset by Wilson's comments, Fitzgerald has said, and told Libby that Plame worked for the CIA.

That conversation is a key to Fitzgerald's perjury case. Libby testified that he learned about Plame's job from a reporter.

Cheney could also help prosecutors undermine Libby's defense that he was so preoccupied with national security matters, he forgot details about the less-important Plame issue. Prosecutors argue that Plame was a key concern of the vice president, and thus would have been important to Libby.

Cheney and Libby got to know each other when Cheney was defense secretary under the first President Bush. Libby has been extremely loyal to Cheney and, in return, had the vice president's unwavering trust.

By 2000, Libby was working as a top adviser to Cheney in the presidential campaign and then followed him to the White House. In the White House, he was known as "Cheney's Cheney" for being as trusted a problem solver for the vice president as Cheney was for Bush.

Even after Libby's indictment, Cheney called him "one of the finest men I've ever known."

The Libby trial is scheduled to begin on January 16th with jury selection to begin on January 8, 2007.

Joel Seidman is an NBC Producer, based in Washington, D.C.
The Associated Press contributed to this story.