Libby's Potential Legal Strategies

Lawyers for I. Lewis Libby, Vice President Dick Cheney's former aide, promise to fight for a public trial. Libby pleaded not guilty to charges in the CIA leak probe Thursday. Richard Beckler, a defense lawyer at the firm of Howrey LLP in Washington, D.C., looks at Libby's possible defense strategies.

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MELISSA BLOCK, host:

For more on how Lewis Libby and his lawyers will try to, as they said today, `clear his good name,' we called on Richard Beckler. He's an attorney who's both prosecuted and defended those charged with perjury. He also represented Admiral John Poindexter during the Iran Contra investigation. Beckler, who has no connection to the Lewis Libby case, says perjury is harder to prove than one might think.

Mr. RICHARD BECKLER (Defense Attorney, Howery LLP): Some prosecutors may view it as sort of a shortcut; I'm sure that Mr. Fitzgerald is not looking at it this way. But it's a lot easier to prove a perjury case if there's an extrinsic fact. For example, somebody lies and says, `I'm 21 years old' and it turns out they're only 17, and maybe it's in a crucial form submitted to the government. Well, that's pretty easy to prove. You're either 21 or you're 17. A case like this, it's a little more difficult because it seems to me that the perjury and the false statements and obstruction are all dependent on statements that he may or may not have made to a reporter...

BLOCK: Or that a reporter made to him.

Mr. BECKLER: Or that a reporter made to him. So you have to look at the notes of the reporter, if there are any. There's no clear written transcript, if you will, under oath that says what he said or what he did not say. And there's a lot of political environment involved in this case, so I would say it's not going to be an easy case to prove.

BLOCK: And as the defense attorney, would you be thinking, you know, the best defense here is an `I just didn't remember' case, a confused memory, `I'm a very busy, high-government official, and this is not intentional; it's just a pure lapse of memory'?

Mr. BECKLER: Well, I'll tell you the truth, that is a defense that he could use, `I don't remember.' But my experience has been--is I don't think it's a great defense. I think there are better defenses, such as what was actually in those notes. If you base a prosecution on the notes that an FBI agent takes in an interview, and you're also basing it on the notes that a reporter takes, you're not necessarily going to have the highest degree of accuracy. I think that's the better line of attack, frankly, than `I just don't remember.'

BLOCK: So you'd be working against--you'd be trying to impugn the testimony of those witnesses--of, say, Judith Miller, Matthew Cooper, Tim Russert.

Mr. BECKLER: That's correct. I'm not saying I would completely eliminate the `I don't remember' defense, but my personal feeling is that `I don't remember' is not going to take you all the way there if you're looking for an acquittal.

BLOCK: You know, if you think about these perjury counts and the false statements counts against Lewis Libby, there's a lot of specificity in this indictment. It's not just one thing he said to one investigator, and especially when he testifies about his conversation with Tim Russert of NBC. There are whole paragraphs of specific things that he said that Tim Russert had told him. Doesn't that make his defense more complicated, that it wasn't just one throwaway line; it was line after line after line?

Mr. BECKLER: It certainly does make it more difficult. You know, in a way I'm surprised, frankly, that he spoke as much as he did to the grand jury and to the FBI.

BLOCK: You are?

Mr. BECKLER: Yeah. I think that--I mean, he wanted to cooperate, which most people do, but at some point you have to pull the plug. By necessity, the more you speak about a situation to more people, the accounts tend to start to differ. I mean, I can only go back to Admiral Poindexter and other cases--I've had similar cases with less-notable people. Rarely will I allow them to speak to the FBI before.

BLOCK: And what about a grand jury, though?

Mr. BECKLER: Well, you have no choice in a grand jury. If you're subpoenaed to a grand jury, you have to testify, unless you assert the Fifth Amendment, which Mr. Libby, of course, had a right to do. Now clearly, as this indictment shows, if he had never spoken to anybody, he probably wouldn't have been indicted.

BLOCK: If Lewis Libby were convicted on all counts, he could get a 30-year sentence. Do you see any room for a plea bargain here?

Mr. BECKLER: I would say there probably doesn't seem to be much room for a plea bargain. After all this investigation, it'd be tough for a prosecutor to take a plea bargain to something less, unless he had good reason to do so. And the good reason to do so, of course, would be whether or not Mr. Libby could testify against other officials or other higher officials within the government, the vice president, whomever. And I don't see that happening. I don't know Mr. Libby individually, but the history suggests to me that he's not going to be one to go in and, quote, "turn in his boss."

BLOCK: Richard Beckler, thanks for coming in.

Mr. BECKLER: Thank you.

BLOCK: That's defense attorney Richard Beckler, a senior partner at the firm Howery LLP.

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