They said they could not recall another case where it had been tried in court, although it has been tried in the court of public opinion. In the 1980s, President Reagan denied trading weapons for hostages in the Iran-Contra affair, but later recanted when confronted with evidence that he did, citing a memory lapse.
Some experts said Libby runs the risk of appearing to believe he's above the law.
"A D.C. jury is quite likely to have its share of people with lower-level government jobs who don't take kindly to self-important claims that the press of business makes it unnecessary to focus on precisely what one says to government investigators and in the grand jury," said Daniel Richman, a former federal prosecutor who teaches criminal law at Fordham Law School.
But others said they could sympathize with Libby's claim.
"I think that people who have been around government will regard this ... as not being a frivolous defense," said Stephen Saltzburg, a George Washington University law professor and former Justice Department official. "I can remember myself, there were days in the Justice Department you would be dealing with a different issue every 15 minutes. If someone asked me a week later ... who I talked to a week earlier ... I could easily have been wrong just because there was so much going on."
Jeffrey Frederick, a Charlottesville, Va., jury consultant, said the test for Fitzgerald would be showing that the conversations with journalists dealt with a subject that was so important that a reasonable person would have remembered it. That could be tough for Libby to overcome because the subject matter was the war and Wilson -- whom the White House clearly had concerns about.
"We are not talking about whether you had tuna or sirloin on a Friday night," Frederick said.
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rick.schmitt@latimes.com
