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In Libby's case, it's credibility at issue

Amid a campaign against her husband, Valerie Plame came up too often to forget, the government argues.

February 05, 2007|Richard B. Schmitt | Times Staff Writer

WASHINGTON — Former vice presidential aide I. Lewis "Scooter" Libby's defense in his perjury trial rests largely on the claim that he was too busy with pressing affairs of state to recall minor events such as conversations with reporters about an obscure CIA employee.

But after nine government witnesses testified in federal court here over the last two weeks, a question is emerging: Given all the time and attention the White House devoted in 2003 to CIA operative Valerie Plame and her husband, former Ambassador Joseph C. Wilson IV, how credible is Libby's claim of forgetfulness?

Libby, 56, Vice President Dick Cheney's former chief of staff, is charged with obstructing a federal investigation into how the identity of Plame became public in the summer of 2003.

Wilson's public criticism of the reasons for the Iraq war spawned what the trial has shown to be a concerted effort by Cheney's office to discredit him. Prosecutors allege that as the administration pushed back, Plame became caught in the crossfire and was exposed.

Libby's lead lawyer, Theodore V. Wells Jr., has painted a defense in broad strokes, portraying Libby as a senior official immersed in life-and-death national security issues who may have been the scapegoat in a White House cover-up.

Special Prosecutor Patrick J. Fitzgerald, by contrast, has been methodically building a narrowly focused case that in large part is being made through the testimony of past and present Bush administration insiders.

That has resulted in a rare glimpse into how the White House mobilizes against critics, including an account of how, contrary to claims it made at the time, Cheney's public relations machinery was operating full-throttle to rebut the questions Wilson was raising about Iraq's supposed nuclear weapons capabilities.

Experts said the fact that Cheney's office was attaching such importance to the issue would suggest it was the sort of thing not easily forgotten.

The government case "turns on showing that the need to link Wilson to the CIA was a high priority for Libby and the kind of thing that he would not forget about and that he would not want to be candid to investigators about," said Daniel Richman, a former federal prosecutor and a professor at Fordham law school. "The government has been making a strong case for that."

Legal experts cautioned against reading too much into what the jury might be thinking at this stage of the trial because Libby's lawyers have yet to present their case. And for the prosecution, proving that a senior government official intentionally lied is no easy matter.

Some of the government's witnesses have indicated memory problems of their own, potentially bolstering Libby's faulty memory defense.

Former New York Times reporter Judith Miller acknowledged under cross-examination last week that when she first appeared before the grand jury she did not remember the first time Libby gave her information about Plame. She said her memory was refreshed after she found a notebook in her office.

The closest thing to a smoking gun in the case so far are notes handwritten by Libby during a phone conversation with Cheney on June 12, 2003. Cheney told Libby, according to the notes, that Wilson's wife was a counter-proliferation specialist at the CIA.

Libby has acknowledged taking the notes, but has said he had forgotten that Cheney had passed him the tip by the time he started talking with reporters about Wilson a few weeks later. He has told investigators that he believed he first learned about Plame from the reporters; prosecutors say Libby lied out of concern that he could be charged with leaking classified information.

Trial testimony has indicated that other officials also discussed Plame's secret resume with Libby around the time he was speaking with Cheney. They include a high-ranking State Department official, a top spymaster from the CIA, and Libby's morning intelligence briefer.

With those witnesses having no apparent motive to lie, legal experts say, their testimony threatens to undercut Libby's memory defense as his lawyers prepare to put on their case starting Wednesday. They say the cumulative effect of witnesses saying they were engaged with Libby on the subject earlier than when he has said he first learned about Plame could be a challenge for the defense.

"Either these witnesses are wrong in their recollections or Libby will need to convince [the jury] that he simply forgot these multiple conversations," said Daniel French, a former federal prosecutor who represents a potential witness in the trial. "I think that could be problematic" for Libby.

Jeffrey Frederick, a jury consultant from Charlottesville, Va., said: "What the government had to do was show that this was not a one-conversation gig. I think they are doing a very good job of nailing that down."

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