In his prosecution of I. Lewis “Scooter” Libby, Special Counsel Patrick J. Fitzgerald contended that  Vice President Dick Cheney’s former Chief of Staff was actively involved in a smear campaign against anti-war diplomat Joe Wilson and his wife, Valerie Plame and that he lied about what he said to whom during the early summer of 2003, thus obstructing the investigation to determine who “outed” Plame as a CIA agent by leaking her identity to the media. 

Libby’s lawyers countered that he was too busy with pressing national security matters to be involved up to his eyeballs in a conspiracy to leak Plame’s identity and then to cover up the White House’s involvement, and if details of what he told FBI investigators conflict with what other witnesses said it’s because the matter was too insignificant to recall.

Let’s examine the prosecution’s case point by point.

Libby The Leaker 

The prosecution did not make its case that Libby was at the heart of the smear campaign against Wilson and Plame. Rather than making like the Ancient Mariner and buttonholing any journalist who would listen to the convoluted saga, just two reporters – Judith Miller, then with The New York Times, and Matthew Cooper, then with Time Magazine - testified that Libby told them who Plame was and seven other reporters testified that other people told them.

In a video interview, political commentator Mickey Kaus suggested that to be effective, Libby would have preferentially leaked to just one or two reporters, giving them an “exclusive.” But both reporters’ notes were ambiguous as to whether they first heard about Plame from Libby, or were seeking to corroborate what someone else had told them (see below). And Miller’s boss, Jill Abramson, undermined her subordinate’s testimony when she took the stand, suggesting that Miller may not have learned Plame’s identity when she claimed she did.
 

Memory Or Made-Up?

The brain is very quirky when it comes to filing information for short-term retrieval or long-term storage. However, short- and long-term memory both rely on attentiveness. This is why you remember a hurtful remark your best friend made 25 years ago, but can’t recall the name of someone you were introduced to at a party just five minutes earlier. At the time you were squabbling with your friend, you were paying close attention what he or she was saying. But just as the party host was making the introduction, you were distracted by music or spotted someone else in the crowd waving to you.

So if Libby says he can’t remember specifics of conversations about Plame – or whether he was a participant in such conversations - it could be because he was occupied by other matters or because the subject was of such scant interest that it did not “register.”

An article in The Washington Post explains the vagaries of human memory, as it pertains to the Libby trial:

“Human memory does not work like a video camera; memory is more selective,” writes [Elizabeth F. Loftus] the professor of psychology at the University of California at Irvine. “The act of remembrance is reconstructive … human memory can change in dramatic and unexpected ways with time. Memory can be altered through the reconstructive process, unconsciously blending actual fragments of memory of the event with information provided during the memory retrieval process.”
Her specialty is the murkiness of memory. Her super-specialty is explaining how memory works - and doesn’t work - to juries. She has appeared as an expert witness in more than 200 cases. Loftus was called in by Libby’s defense team to speak to the court about the vagaries of memory. Fitzgerald cast doubt on Loftus’s own memory through questioning.

“If you are having lots of conversations with similar kinds of people, lots of politicians and reporters, lots of interaction with media,” says Loftus, “it can be very difficult for even the most intelligent person to know which detail you received from which source.”

Loftus says that memories are fungible. She has even proposed that the oath “Do you swear to tell the truth, the whole truth and nothing but the truth?” be amended to read: “Do you swear to tell the truth, the whole truth or whatever it is you think you can remember?”

“True memories,” Loftus writes, “cannot be distinguished from false without corroboration.”

And Libby was not the only witness who had a faulty recollection of events. As Libby’s defense pointed out, it’s unfair to assume that prosecution witnesses made honest mistakes, but that Libby was lying through his teeth.

Not Taking Note-Taking As Gospel

Can contemporaneous notes corroborate someone’s recollection of events and conversations? Researchers have known for years that the written or typed notes people take at meetings and lectures, while questioning suspects and witnesses during a crime investigation, or during interviews of sources for newspaper or magazine articles are inaccurate and incomplete, according to The Associated Press.

The brain filters out information being presented verbally so that note-takers do not record information they either know already, or that they do not completely understand. “Notes can become personal snapshots, useful for jogging memory, more than an official record,” Kenneth A. Kiewra, a University of Nebraska educational psychology professor who studies note-taking, tells AP. 

Here’s how this phenomenon impacts the trial testimony:

FBI agent Deborah Bond wrote a report saying Libby “adamantly denied” discussing CIA operative Valerie Plame. The original FBI notes, however, contain no record of that denial. Rather, they say he may have discussed Plame but couldn’t recall. ‘Adamantly might not be the perfect word,’ Bond acknowledged at trial.”

Prosecutors say Libby told New York Times reporter Judith Miller that Plame, the wife of prominent war critic Joseph Wilson, worked for the CIA. As evidence, they point to Miller’s note, set off by parentheses, that said, “Wife works for bureau?”

Miller testified that she believed Libby told her Plame worked for a bureau of the CIA. But she said she sometimes sets things off in parentheses when she already knows information and wants to ask about it. That’s how Libby’s attorneys want jurors to read those notes. …

Former Time magazine reporter Matt Cooper testified that Libby confirmed for him that Plame worked at the CIA. That confirmation did not appear in Cooper’s notes. Libby says he told Cooper only that he’d heard something like that but didn’t know for sure.

Cooper could not explain a line in his typewritten notes that read: “had somethine about the wilson thing and not sure if it’s ever.”

Libby’s lawyers believe that was supposed to read: “Heard something about the Wilson thing, but not sure if it’s even true.” …

One of the few reporters whose notes were not dissected in the Libby trial was Washington Post reporter Bob Woodward. He spoke confidently about what he learned about Plame and when he learned it.

He had taped his interview.

Conflicting Testimony, Conflicting Timelines

No two witnesses appear to agree on  a timeline, or on who first told him or her about Plame.

Miller and Cooper’s testimony about Libby being the leaker conflicts with the testimony of Robert Novak, Woodward and several other journalists that Libby was not the leaker. Miller’s testimony also conflicts with Abramson’s testimony.

“Meet The Press” moderator Tim Russert’s testimony conflicts with Libby’s recollection that Libby did not know Plame’s identity until Russert told him on July 10 or 11, 2003; Russert says he did not know Plame’s identity until he read Novak’s July 14 column, “Mission to Niger.”

Libby’s memory that Russert told him who Plame was conflicts with FBI agent Deborah Bonds’ testimony that Libby had been told by Cheney on June 12.

Miller’s testimony that Libby told her about Plame on June 23 and July 8, 2003 conflicts with Libby’s assertion that he did not know this information until later. So too with former White House press secretary Ari Fleischer’s testimony that he learned Plame’s identity from Libby on July 7, 2003.

As far as anyone can tell from this tangled tale, the very first person to leak Plame’s identity was former Deputy Secretary of State Richard L. Armitage, a top aide to then-Secretary of State Colin L. Powell, who told Woodward – in a taped interview – about Plame being Wilson’s wife on June 13, 2003.

Yet Fitzgerald went after Libby, not Armitage.

In a recent commentary in The Washington Post, Victoria Toensing, a deputy assistant attorney general in the Reagan administration and an attorney, lays out her own personal bills of indictment against Armitage, the CIA, Wilson, the media, Fleischer – as well as both Fitzgerald and the U.S. Justice Department – because the Plame investigation “has enough questionable motives and shadowy half-truths and flawed recollections to fill a court docket for months.”    

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