Outside the Beltway

Libby Planning “I Forgot” Defense

James Joyner · Saturday, October 29, 2005 · 3 comments

Lawyers for Scooter Libby are building the groundwork for a defense based on the idea that he simply forgot where he heard about Valerie Plame and whom he told.

Libby Lawyer Plans Lack-of-Memory Defense (AP)

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 involves allegations that as Cheney’s chief of staff he lied to FBI agents and a federal grand jury. Libby, who resigned immediately, 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 not 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.”

The lack-of-memory defense has worked with varying degrees of success in controversies from Iran-Contra to Whitewater.

The defense may be effective but I would much prefer “I didn’t do it.” Essentially, he’s arguing he gave false and contradictory statements to the grand jury inadvertently. Presumably, if one is fuzzy on the details, the proper answer is, “I can not recall” or a variation of the classic, “To the best of my recollection. . . .”

I forget where I learned things all the time. It’s an occupational hazard of reading widely. Given the flood of information that must come into the vice president’s office, let alone in a time of war, I’m sure it happens to Libby all the time.

That said, it’s not as if Libby had to just do the best he could to remember things. He was chief of staff for the vice president of the United States. That implies that 1) he has a staff and that 2) they work for him. Presumably, then, he could have had people research the events and turn up those faxes.

Further, the passage of time would not seem to be a plausible explanation here. According to the indictment, Libby learned Plame’s name “On or about June 9, 2003.” The Novak column that triggered the controversy was published July 14, 2003. The Washington Post made a big splash with a story on September 27 or 28 and the story had been bubbling at Josh Marshall’s site and other places for a while before then.

Yes, I’m sure the White House was even more hectic than usual during that period. But, surely, Libby’s mind was especially focused on this issue, since he was defending the administration from attacks that it sexed up intelligence to promote the war. The span of time between Libby’s learning the information and the “Oh no” moment at which his then-state of mind would have surely been fixed in his memory was only 3-1/2 months.

I had never heard of Scooter Libby until this scandal broke out and have no strong opinions of the man aside from the facts of the case. He is very accomplished and held many positions of high trust and responsibility without, so far as I’m aware, previously having his integrity questioned. If the entirety of his defense here, though, is “Oops, I forgot,” he’s in trouble.

The great lesson of the Watergate scandal, so widely known as to be cliché, is that “the cover-up is worse than the crime.” It was the case in Iran-Contra, the Lewinsky matter, and here.

While it was a crappy thing to do, Libby did not violate the law in revealing Plame’s name to the press. He’s a Columbia lawyer with thirty years of experience in government and he had access to a team of expert legal counsel; he must have known that within hours of the controversy breaking. Further, even aside from legal culpability, Libby’s intent in mentioning Plame’s role to reporters was merely to cast doubt on her husband’s mission to Niger, not to “out” someone he likely did not think was actually covert. So, quickly coming forth with the truth, especially while under oath before a grand jury, was the obvious response. Yet, he didn’t.

We’ll presumably learn more about his motivations as the case progresses. One would imagine, though, that he was trying to shield his boss from criticism. The great irony, though–as it always is with these things–is that, by trying to cover up a non-crime, he not only (allegedly/possibly) committed a crime but turned what would have been a three day story into one that will last for three years or more.