Libby Possible Defense Strategies

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With the Libby indictment finally being handed down, the question now becomes … “What’s his defense ?”

Libby, who resigned as soon as the indictment was handed up, 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 now 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. Only one person went to prison in the Iran-Contra affair, although several people pleaded guilty to making false statements.

President Clinton and his wife, Hillary, were cleared in the Whitewater investigation of fraudulent land deals in Arkansas, a subject well-suited to a lack-of-memory defense. The land deals took place a decade before they came under criminal investigation.

Tate referred to another possible line of defense, saying that “for five years, through difficult times, Mr. Libby has done his best to serve our country.” That argument worked in the administration of President George H.W. Bush in 1992, though not in court.

Bush pardoned those in government who had been implicated in the Iran-Contra criminal investigation. Among others, the pardons went to former Defense Secretary Caspar Weinberger, whose trial was scuttled.

So, looks to be “lack of memory,” or “doing my job under difficult conditions,” as defense possibilities for Libby’s legal team to pursue.

If it does come down to a pardon situation though, would Bush exercise this prerogative?

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