Prosecutors in the CIA leak trial Tuesday zeroed in on I. Lewis Libby's alleged lies to a grand jury, playing audiotapes of Libby saying repeatedly that he could not recall conversations about the CIA employment of the wife of Bush administration critic Joe Wilson.
The eight hours of grand jury testimony conflict with testimony earlier in the trial by former White House press secretary Ari Fleischer and other witnesses who said Libby indeed had discussed the CIA employment of Wilson's wife, Valerie Plame.
Libby's defense to charges of perjury, obstruction and lying to the FBI is constructed on assertions that he was immersed in national security issues for Vice President Dick Cheney, that his memory may be faulty and that the recollections of the witnesses against him also are faulty.
In the grand jury audiotapes, Special Counsel Patrick Fitzgerald focused on a going-away lunch Libby had with Fleischer that Libby seemed able to recall in some detail.
Libby and Fleischer were friends, Fleischer told the grand jury, and the two discussed the Miami Dolphins and Fleischer's future plans.
In the recording, Fitzgerald asked Libby if recalled telling Fleischer about the CIA employment of Wilson's wife and that it was "hush-hush."
"I don't recall that," replied Libby, speaking softly.
Libby's own notes show that he was told by Cheney about the CIA employment of Wilson's wife, more than a month before Plame's CIA identity was publicly revealed.
Libby says he had forgotten that Cheney had told him. Libby told the grand jury that he was "surprised" to hear about the CIA employment of Wilson's wife a month later, from NBC News reporter Tim Russert. Russert, who will testify for the prosecution once the Libby grand jury tapes are played in their entirety, says he did not discuss Wilson's wife with Libby.
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In the recordings, Fitzgerald asked Libby if, up until the conversation with Russert, did he have no recollection of discussing the CIA employment of Wilson's wife.
"Yes sir, in that period, I have no recollection," Libby replied.
Vice president's appearance in doubt
Defense attorneys seemed so certain in December when they announced that Vice President Dick Cheney would be called to testify in the CIA leak trial.
Now that prosecutors are close to resting their case against Libby, a former Cheney aide, Libby's attorneys are quietly backing away from that claim. Suddenly, it's unclear whether Cheney - or even Libby himself - will take the stand.
In documents filed in federal court this week, Libby's attorneys said Cheney was "potentially" a witness. Such hesitation is common but it's a big step back from attorney Theodore Wells' declaration that, "We're calling the vice president" to help defend the former aide against perjury and obstruction charges.
Attorneys appeared even less committed to calling Libby. For months, they said Libby planned to testify and used that assertion to get access to a series of classified documents, such as his morning CIA briefing topics, so that they could be entered into evidence.
"We emphasize at this point that Mr. Libby has not decided whether he will testify," lawyers wrote Monday night.
Special Prosecutor Patrick Fitzgerald has raised the possibility that Libby was throwing the court a head fake: promising to testify to win access to classified evidence, then quickly veering away from witness stand.
Libby originally planned to testify about those national security issues to help bolster what has become known as the "memory defense." Testifying would be a risky move, however, because it would subject him to cross-examination by Fitzgerald, who has a reputation as a tough questioner.
Defense attorneys now say they should be allowed to present Libby's calendars and briefing topics even if Libby doesn't testify. Forcing him to take the stand would violate his right to a fair trial and his right against self-incrimination, attorneys wrote.
U.S. District Judge Reggie B. Walton has not ruled on the issue but has said that attorneys could not raise the memory defense at closing without Libby's testimony.
"If Mr. Libby doesn't testify, there'll be no memory defense," Walton said.
A victory for Libby defense
The judge in the CIA leak trial Tuesday refused to block a subpoena for a New York Times reporter's testimony, a ruling favorable to defendant I. Lewis Libby.
Lawyers for Libby want Times reporter David Sanger to testify about a July 2, 2003 conversation in which Libby did not bring up the fact that the wife of Bush administration critic Joseph Wilson worked at the CIA.
Libby's lawyers are trying to rebut prosecution evidence that there was a scheme to reveal Valerie Plame's CIA employment as a way of undermining Wilson's criticism that the administration had twisted prewar intelligence on Iraq.
Invoking First Amendment concerns, lawyers for The New York Times said it is imperative for reporters to protect their confidential sources and that compelling Sanger to testify would damage the news gathering process.
U.S. District Judge Reggie Walton said that Libby's right to a fair trial trumped any First Amendment right there might be to protect confidential sources. Walton pointed out that it was Sanger's source -- Libby -- who was asking the reporter to testify.