Cheney on the stand? Maybe so, and not just to authenticate a document

Fitzgerald says that the vice president's state of mind is relevant in determining whether Scooter Libby lied about Valerie Plame.

Published May 25, 2006 3:59AM (EDT)

Patrick Fitzgerald has just filed a new brief in the Scooter Libby case, and the headline news from it is pretty straightforward: The special prosecutor says he may call Dick Cheney to testify at trial in order to authenticate what appear to be the vice president's handwritten notes on Joseph Wilson's July 6, 2003, New York Times Op-Ed. The underlying story is a little more complicated -- and a lot more interesting -- than that.

Fitzgerald put the handwritten notes before the court earlier this month in the course of describing the newspaper articles he intends to use at trial. Libby's legal team responded last week by arguing that the notes couldn't be authenticated without having Cheney testify; that the notes aren't relevant to the case against Libby; and that if they're relevant, then so is a whole lot of other evidence going to the state of mind of everyone else even tangentially related to the Valerie Plame case.

In the reply brief he just filed, Fitzgerald says that Libby has it all wrong. Fitzgerald says he can authenticate the notes by putting Cheney on the stand and asking him if they're his. That's not the only way Fitzgerald could do it; as he notes, the Federal Rules of Evidence would allow him to authenticate Cheney's handwriting through the testimony of just about anyone who's familiar with the way the vice president writes. But in the course of his brief, Fitzgerald makes it clear -- without saying so explicitly -- that he'd like to put Cheney on the stand for another reason: To question him about the conversations he had with Libby about Wilson's column, and in the process to undercut Libby's claim that those conversations didn't involve the identity of Wilson's wife.

As shown in excerpts of grand jury testimony attached to Fitzgerald's brief, Libby has admitted that he talked with Cheney after Wilson's article appeared, and that Cheney said then that he wanted to "get the truth out" about it. Libby has also admitted that his conversations with Cheney immediately after Wilson's article was published touched on all of the topics covered in the handwritten notes -- all except one: While Libby acknowledges that he and Cheney discussed Wilson's wife long before and long after Wilson's Op-Ed appeared, he says it's the one issue that they didn't discuss in the immediate aftermath of the Op-Ed.

From the grand jury transcript:

Prosecutor: As you sit here today, are you telling us that [Cheney's] concerns about Ambassador Wilson, his concern that he's working pro bono, his concern that he's an ambassador being sent to answer a single question, his concern that his wife may have sent him on a junket, would not have occurred between June 6th and July 12th when you were focusing on responding to the Wilson column but would have occurred much later?

Libby: The only part about the wife, sir, I think, might not have occurred in that week. The rest of it, I think, could have occurred in that week because, you know, it's all there. You say it's all in the column. The part about the wife, I don't recall discussing with him. It might have occurred to him, but I don't recall discussing it with him prior to learning again about the wife.

Libby says "learning again" about Wilson's wife because he claims that he had first learned sometime before June 12, 2003, that she worked at the CIA; that he had forgotten it by the time Wilson's article appeared on July 6, 2003; that he didn't discuss it with Cheney or anyone else once the article came out; and that he then remembered it anew when he supposedly heard it from Tim Russert around July 10 or July 11.

It all seems just a little implausible. How is it that Libby forgot about "the wife" at the very moment, as he admits, that Wilson's column was the subject of "daily" discussion at the White House? And how is it that Cheney, in the course of directing Libby to "get the truth out" about Wilson's column, talked with him about everything in the handwritten notes except the question of "the wife"?

Fitzgerald clearly believes that Cheney's testimony could set the record straight. As he says in his brief, "In light of the vice president's annotation of the Wilson op-ed with the words, 'Did Wilsons wife send him on a junket?' it is unlikely that, as defendant testified, the issue was not discussed in defendant's repeated conversations with the vice president during the week following the Wilson op-ed's publication."

Fitzgerald notes that Cheney was Libby's "direct superior," and that Cheney "directed" Libby's actions "with respect to a response to Wilson's op-ed." "Defendant shared the interests of his superior and was subject to his direction," Fitzgerald writes. "Therefore, the state of mind of the vice president as communicated to defendant is directly relevant to the issue of whether defendant knowingly made false statements to federal agents and the grand jury regarding when and how he learned about Ms. Wilson's employment and what he said to reporters regarding this issue."

Those handwritten notes get at "the state of mind of the vice president as communicated to defendant," but there's one way for Fitzgerald to get a whole lot closer: Put Cheney on the stand, under oath, and start asking him questions that he'll have to answer or take the Fifth to avoid.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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