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 I. Lewis “Scooter” Libby alleges that as Cheney’s chief of staff he lied to FBI agents and a federal grand jury. The case has been assigned to U.S. District Judge Reggie Walton, a nominee of President Bush in 2001.
Libby, who resigned as soon as the indictment was handed up, 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 now 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.”
Strategy worked in previous cases
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, prosecutor Fitzgerald said, are that the month before the conversation with Russert, Libby learned about the CIA status of Valerie Plame from Cheney, from a senior CIA officer and from an undersecretary of state.
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.