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The Libby Trial: Whose Memory Problems?
Prosecution witnesses have trouble remembering some key facts.


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Byron York

Lewis Libby, Vice President Dick Cheney’s former chief of staff who is on trial for perjury and obstruction of justice, claims he doesn’t remember, or mis-remembers, some of the conversations he had with reporters concerning the former CIA employee Valerie Plame Wilson. That, Libby says, accounts for the differences between his testimony about talks with journalists like Tim Russert and Matthew Cooper and the accounts of Russert and Cooper themselves.

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Prosecutor Patrick Fitzgerald didn’t buy Libby’s defense, ultimately deciding to indict Libby in November 2005. But now, at the long-awaited trial, some of Fitzgerald’s witnesses are having memory problems of their own. Under cross examination by Libby’s lawyers, two of Fitzgerald’s first witnesses had to concede that they could not remember aspects, sometimes important aspects, of their roles in the Plame matter and that they gave conflicting accounts of events during interviews with the FBI, during appearances before Fitzgerald’s grand jury, and at the trial itself.

“I Don’t Recall”
First was Marc Grossman, a former State Department official who was close to original Plame leaker Richard Armitage. On the stand, Grossman conceded that he had talked to Armitage on the eve of his, Grossman’s, questioning by the FBI — an action Libby lawyers characterized as “fishy,” since it is generally frowned on for two witnesses in a criminal investigation to confer before testifying. Grossman also revealed that when Libby called him about the then-unnamed former ambassador (Joseph Wilson) who was appearing in press accounts criticizing the Bush administration’s case for war, Grossman called Wilson to talk things over — but never told Libby about it.

But Libby’s lawyers wanted to zero in on Grossman’s memory. Grossman says he told Libby that Wilson’s wife worked for the CIA in early June 2003. “You told the jury yesterday that you gave Mr. Libby the information concerning Mrs. Wilson in a face-to-face meeting on June 11 or June 12, 2003,” defense lawyer Ted Wells said to Grossman.

“That is what I recall,” Grossman answered.

“Isn’t it a fact that when you were first interviewed by the FBI in October 2003, you stated to the FBI that your contacts with Mr. Libby were during two or three telephone conversations, and that there was absolutely no reference to a face-to-face meeting?”

“I can only say what I said yesterday,” Grossman said.

Wells began to press. “You told the jury yesterday that the first time you learned that Mrs. Wilson worked for the CIA was when you read the INR report,” Wells said, referring to the State Department’s Bureau of Intelligence and Research, better known as INR. “Do you recall that you told the FBI that you learned about Mrs. Wilson’s working at the CIA before you read the INR report?”

“Well, if I did so, it would have been wrong, sir,” an increasingly nervous-looking Grossman replied.

“You told the jury yesterday that you discussed with Richard Armitage the INR report — “

“Yes.”

“You said that Mr. Armitage had a copy of the report.”

“Yes.”

“Do you recall telling the FBI in 2003 that you had no knowledge whether the INR was disseminated to Mr. Armitage?”

“I don’t recall,” Grossman said. “I don’t deny that.”

“You told the jury a few minutes ago that you recall having a conversation with Secretary Powell,” Wells continued. “Do you recall that in your FBI interview of February 24, 2004, you stated that you did not discuss with Secretary Powell your June 12, 2003 conversation with Mr. Libby?”

“I do not recall that,” Grossman answered.

“You do not deny that?”

“No, I do not deny it.”

And so it went. By the end of his testimony, Grossman looked somewhat rattled — and relieved to be finished. But as it turned out, he had a rather easy time of it compared to the next witness, former top CIA official Robert Grenier.

“I Did Not Remember”
Fitzgerald called Grenier to testify that Libby had shown unusually intense interest in the subject of Joseph and Valerie Plame Wilson, so much so that Grenier was once called out of a meeting with the CIA director — something that had never happened before or since — when Libby called to demand information on the Wilsons.

But Grenier’s testimony, under questioning from Fitzgerald assistant Peter Zeidenberg, suggested that Libby wasn’t looking to smear the Wilsons but was, instead, simply trying to find out what had happened in the CIA/Niger matter. Grenier described receiving a call from Libby on the morning of June 11, 2003. “He told me that there was an individual by the name of Joseph Wilson, a former ambassador, who he said was going around town and speaking to the press and claiming that he had been sent on a mission to Niger,” Grenier testified. “[Libby] wanted two things. He wanted me to verify whether or not there was truth to that story — whether the CIA had sent him — and whether it was done at the request of the vice president’s office.”

Grenier started checking on it. Later in the day, an impatient Libby called back, wanting answers. (That is when Grenier was called out of that meeting with the CIA chief.) Grenier told Libby what he had discovered.

“I told him that in fact it was true, that the CIA had sent Ambassador Wilson to Niger,” Grenier said. “The second major point that I made was that in fact, people with whom I had spoken had verified that it wasn’t only the Office of the Vice President that was driving this, that there was interest from the Department of State and Department of Defense.”

Libby, Grenier said, was anxious to get the information out — he asked Grenier if the CIA would make it public that the Wilson trip wasn’t made only at the request of the vice president. Grenier said he would check into that, too. And then Grenier told Libby something else.

“I mentioned it only in passing,” Grenier testified. “I believe I said something to the effect that Ambassador Wilson’s wife works there, and that is where the idea [for his taking the trip] came from.”

“Why was it you felt that that was a piece of information that should be passed on to Mr. Libby?” asked Zeidenberg.

“The reason I said it was that I wanted to be as forthcoming as I possibly could,” Grenier answered. “And to me it was an explanation as to why we had found this Ambassador Wilson and sent him off to Africa…I thought that was germane to the story.”

“How was it in your mind germane to the story?”

“Because not only was she working in the Counterproliferation Division, she was working in the specific unit that had decided to sent Ambassador Wilson,” Grenier answered. “There was some question of why — and the reason of why was because his wife worked there.”

So far, so good. But at that point, it became clear that the Fitzgerald team knew Grenier would have credibility problems, as Zeidenberg brought up the issue of Grenier’s earlier testimony in the case.

“When were you first interviewed by the FBI in this case?” he asked.

“Fall of 2003.”

“And the grand jury?”

“January of 2004.”

“When you were first interviewed by the FBI, were you asked whether you had discussed Mr. Wilson’s wife with Mr. Libby?”

“I’m sure it came up,” Grenier answered. “My response at the time was that I didn’t clearly remember.”

“And in connection with your grand jury testimony in January 2004, do you recall being asked about your memory of whether you had relayed to Mr. Libby information about Mr. Wilson’s wife?”

“I told them that I may have, but I didn’t recall,” Grenier said.

“And sometime after you testified before the grand jury, did you continue to think about that question?” Zeidenberg asked.

“Yes,” said Grenier, “I was going over it and over and over in my mind.”

“I didn’t remember anything new about the conversation,” Grenier continued, “but what I remembered was what I felt after the conversation…I recall feeling guilty about it, that I had said too much, that I had relayed too much information.”

Those feelings of guilt, Grenier explained, led him to conclude that he did, in fact, tell Libby about Valerie Plame Wilson — a significant change from the story he had told under oath both to the FBI and the grand jury.

Prosecutor Zeidenberg appeared sympathetic as Grenier described the process of re-remembering his conversation with Libby. “It wasn’t as if one day I had this flashing revelation,” Grenier said. “But as I thought about it…I developed the growing conviction that in fact, I had said it…At a certain point, I said, ‘Wake up and smell the coffee.’“

One might have expected that Grenier might then get back in touch with Fitzgerald’s office to correct the record. But Grenier testified that he did nothing. Zeidenberg asked why. He didn’t think it was important, Grenier answered, until “at a certain point, Spring of 2005, I started to see stories which indicated what Mr. Libby knew and when he knew it was in fact open to question.” Only then, Grenier said, did he get in touch with prosecutors to correct his testimony, appearing before the grand jury a second time in July 2005.

With Grenier on the stand, Fitzgerald’s team did its best to rehabilitate a witness who had given them faulty information. A few minutes later, though, Libby defense attorney William Jeffress put Grenier through much more aggressive questioning.

“You told the FBI that you did not discuss Valerie Wilson with Mr. Libby,” Jeffress said.

“I told them I really didn’t recall clearly whether I had said so or not,” Grenier answered. “I think there’s some confusion, frankly, in this report from the FBI.”

Then Grenier, appearing a bit nervous, gave a rambling explanation of what he had done. “My memory of what I said in that meeting, I believe that what I conveyed in that meeting, and I want to caution, it’s hard for me to parse out what I said in what meeting and what time, but what I believe I reported to the FBI initially was that in my conversation, my second conversation, with Mr. Libby on June 11, I couldn’t recall clearly whether I told him that Mr. Wilson’s wife was working in the unit that dispatched him to Niger. I may have, but I didn’t have a clear recollection.”

Jeffress pointed out that five weeks passed between the time Grenier told the FBI he couldn’t remember whether he told Libby about Plame and the time Grenier appeared before the grand jury. “In those five weeks, you didn’t remember having told Mr. Libby about Mr. Wilson’s wife?” Jeffress asked.

“I did not remember,” Grenier said.

“When you testified before the grand jury, did you tell the grand jury that you had no clear recollection of having told Mr. Libby anything about Mr. Wilson’s wife, although it is possible [you] may have done so?”

Grenier said he had been trying to give the most conservative answer. But when he appeared before the grand jury a second time, in 2005, he was read his original I-don’t-recall testimony. He was startled, Grenier said. “I remembered it and thought that I had always remembered it,” he testified. “I was saying what I believed to be true at the time and subsequently had a different recollection.”

At that point, with the questioning at an intense phase, Jeffress asked Grenier to read a portion of his original testimony. Grenier suddenly said he had misplaced his glasses (he had been using them just a few minutes earlier). Everything stopped as both legal teams looked for the glasses. Grenier patted his pockets and looked a bit lost, but got a few minutes’ break before someone found the glasses nearby. Then Jeffress moved back in.

“Do you find that your memory gets better the farther away you are in time?” he asked. “Does your memory improve with time?”

Grenier laughed. “Not in all cases, no,” he said. A short time later, he was dismissed.

It will be a long trial. There have been just two days of witness testimony, and big-name appearances from Tim Russert, Matthew Cooper, and the vice president himself are still to come. But the Libby defense has pointed out holes in the memories of some important witnesses in this case. And each time his lawyers accomplish that, Libby’s bad-memory defense becomes a little more plausible.

Byron York, NR’s White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.



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