- The Washington Times - Sunday, October 30, 2005

I. Lewis “Scooter” Libby Jr.’s defense against charges of lying under oath in the CIA leak probe likely will turn on the argument that he was simply too busy to accurately recall details of months-old conversations.

“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,” said Joseph A. Tate, the attorney for Vice President Dick Cheney’s former chief of staff, after Friday’s indictment. “This is especially true in the hectic rush of issues and events at a busy time for our government.”

The so-called “lack-of-memory defense” has worked with varying degrees of success when used by high-level officials caught in the grip of scandal during recent decades — namely by Reagan administration officials during Iran-Contra in the 1980s and Clinton administration officials during the Whitewater probes of the 1990s.

While several pleaded guilty to making false statements, just one went to prison in Iran-Contra. In Whitewater, President Clinton and his wife, Hillary, were exonerated after claiming lack of memory during the criminal probe into fraudulent Arkansas land deals made about 10 years before the probe began.

Mr. Libby, 55, could — though it isn’t likely — be sentenced to 30 years in prison and fined $1.25 million if convicted on charges of perjury, making false statements and obstruction of justice, brought by special prosecutor Patrick J. Fitzgerald.

In announcing the indictment, Mr. Fitzgerald said Mr. Libby — who resigned Friday — lied “under oath and repeatedly” during testimony to a federal grand jury about his conversations with reporters regarding the identity of a CIA employee.

Mr. Libby testified that he learned CIA operative Valerie Plame’s name from NBC News’ Tim Russert. However, Mr. Russert has said they never discussed it.

Time magazine’s Matt Cooper and the New York Times’ Judith Miller testified that Mr. Libby identified Mrs. Plame in July 2003, at a time when her husband, former Ambassador Joseph C. Wilson IV, was publicly criticizing the administration’s case for war in Iraq — a case Mr. Libby was instrumental in helping to make.

The indictment asserts Mr. Libby learned of Mrs. Plame’s status from Mr. Cheney and from an unnamed senior CIA official and an unnamed undersecretary of state.

Mr. Libby’s indictment sets the stage for an extraordinary Washington drama, and lawyers involved in the case say Mr. Cheney and other top White House officials could be called to testify. The case is now assigned to U.S. District Judge Reggie Walton, a nominee of President Bush’s in 2001.

One lawyer involved in the case said prosecutors will seek to prove Mr. Libby’s statements were false by going through a very detailed chronology of the events that occurred in the vice president’s office, including conversations he had with Mr. Cheney.

“It has the potential to be politically damaging,” the lawyer said, according to a report yesterday by Reuters. “What exactly were they doing in that office in their discussions about Wilson?”

Mr. Tate, meanwhile, said he was “distressed” that charges were brought against Mr. Libby in an investigation that “began because of concerns that someone had intentionally and knowingly disclosed the identity of a covert agent.”

“The special counsel has concluded that Mr. Libby did not violate this law,” Mr. Tate said. “To say we are disappointed is an understatement.

“Mr. Libby testified to the best of his honest recollection on all occasions,” he said, adding that Mr. Libby cooperated fully with Mr. Fitzgerald’s probe, agreeing to two “extensive interviews” with the FBI, and producing “voluminous documents” to investigators.

“Not only did he waive his Fifth Amendment privilege, but also executed the waiver to permit reporters to testify as to their conversations with him,” Mr. Tate said. “For that reason, we were surprised at this turn of events.”

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