Libby May Rely on Faulty-Memory Defense

The administration plan now is to shift attention to the courts by nominating a new Supreme Court justice as early as Monday and showing a renewed commitment to holding down federal spending. Both moves are designed in large part to placate the president's conservative base, White House aides said.

Libby, who several sources said is searching for a new legal and public relations team in anticipation of a trial, has provided scant information about the substance of his defense. But from a statement Tate, Libby's lead attorney, issued after the indictment, it was clear that Libby will argue that he did not purposely lie to protect himself or anyone else in the White House.

This will be no easy task, according to legal experts.

In the indictment, Fitzgerald asserts that Libby lied repeatedly in the course of the investigation: at least twice to the FBI and twice under oath before the grand jury. Most troublesome for Libby, according to legal experts, is his testimony that he first learned of Plame and her CIA role almost casually from Tim Russert, host of NBC's "Meet the Press."

Fitzgerald contends that Russert never discussed Plame with Libby. Moreover, the indictment states, Libby had learned about Plame more than a month before he talked to Russert, from at least three major sources: the State Department, the CIA and Cheney.

"The most damaging thing is that Libby told the grand jury he learned [about Plame] from a reporter and they have so many details of how he learned it elsewhere," Sen. Charles E. Schumer (D-N.Y.) said yesterday."It leads to the question, 'What is he covering up?' "

Tate, who did not return phone calls yesterday, did not address specifics in his statement. But he argued that different people can have different recollections of conversations and events without violating the law.

"We are quite distressed the special counsel has now sought to pursue alleged inconsistencies in Mr. Libby's recollection and those of others and to charge such inconsistencies as false statements," Tate's statement said. "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."

To prove Libby lied, Fitzgerald will rely on the testimony of three journalists -- Russert, Time magazine's Matthew Cooper and the New York Times' Judith Miller -- as well as a number of government officials who provided information about how Libby learned about Plame.

To prove he did not lie, Libby will contend it is entirely plausible that a high-level staffer juggling a number of important issues could forget how he first learned an important piece of information and seek to show he never purposely misled investigators or the grand jury. In the statement, Tate talked about Libby's involvement in a "hectic rush" of issues "at a busy time of our government."

Another possible defense, a person close to Libby said, is that it makes no logical sense for a person as smart as Libby to engage in a pattern of lies and then encourage reporters to testify to investigators, as Libby did when he freed journalists from confidentiality agreements.

Victoria Toensing, a Justice Department official under President Ronald Reagan, agreed. "My basic factual argument would be that he had nothing to hide, so why would he say things he did not need to say?" she said.

Rove has been in negotiations with the prosecutor in recent weeks to prove he did not purposely deceive the grand jury. He has told friends he is most concerned about being charged with providing false statements because he did not initially tell the grand jury about a conversation he had with Cooper about Plame before her identity was disclosed.

In an effort to show that Rove essentially forgot about the conversation, his legal team has provided Fitzgerald with new information, which sources close to Rove have refused to describe.