Scooter Libby's lawyers want to be perfectly clear about something. Libby's defense to the criminal charges against him isn't that Dick Cheney's chief of staff was "too busy to tell the truth" when a federal grand jury asked him about his role in the Valerie Plame case. Rather, as Libby lawyer William Jeffress tells the Los Angeles Times, it's that, "considering the extremely serious matters Libby was working on and thinking about in 2003, it would not be surprising if, when asked about it three to eight months later, he had imperfect recall of when or with whom he discussed something so relatively inconsequential as Ambassador [Joseph] Wilson's wife's employment."
Jeffress is a smart guy -- in a prior life, we spent a school year clerking in the firm for which he worked -- and the argument he makes isn't a bad one. Scooter Libby was a busy guy, and he probably had a hundred conversations a day about matters that were at least as important as the Bush administration's efforts to discredit a critic of the president's rush to war. But here's a bold idea to consider: If Scooter Libby didn't have "perfect recall" about his conversations with reporters in the summer of 2003 by the time he went before Patrick Fitzgerald's grand jury in March 2004, why didn't he just say so?
During a grand jury appearance on March 5, 2004, Libby was asked about his "specific recollection" of a conversation he had with Time's Matthew Cooper on or about July 12, 2003. He said that he told Cooper that he heard from other reporters that Plame worked for the CIA. Asked again about his "specific recollection" of that conversation, Libby said he remembered being "careful" about the way he characterized the Plame information for Cooper. Then, during a grand jury appearance on March 24, 2004, Libby insisted that it was "a fact" that he told reporters that he'd heard about Plame's employment from other reporters. The prosecutor followed up: "You're certain as you sit here today that every reporter you told that Wilson's wife worked for the CIA, you sourced it back to other reporters?" Libby responded: "Yes, sir. Because it was important for what I was saying and because it was -- that's what -- that's how I did it."
To be fair, we've seen only those portions of the grand jury testimony that Fitzgerald chose to include in his indictment. Maybe there are other parts in which Libby explains that he just can't remember the details of how he leaked to Cooper and Judy Miller and Tim Russert and God knows who else. But the excerpts Fitzgerald has included are the excerpts on which he bases a perjury charge against Libby. It may be a good public relations ploy to argue now that Libby was too busy to have "perfect recall." It may even be the sort of thing that would help build sympathy for, oh, say, a pardon from the president. But as a legal matter, it seems to us that the time for Libby to say "I don't remember" came and went when he said that he did.