Is Libby Backpedaling?

All along, defense counsel for I. Lewis Libby proclaimed that he would testify in his defense at trial to advance the position that any misstatements in his grand jury testimony and to the FBI were the product of a faulty memory -- the "dedicated but overworked public servant" defense.  It now appears that Libby may not testify at trial, as discussed in his brief filed with the District Court on February 5 (available below).  It states, "We emphasize that at this point Mr. Libby has not decided whether he will testify."  The brief seeks the admission of three categories of national security information at trial to show the types of information innundating Libby around the time that he spoke with reporters about Valerie Plame's CIA status.  The government's position is that if Libby does not testify, then the evidence should not be admitted because it is irrelevant.  Libby argues that denying admission of the evidence would infringe on his Fifth Amendment right against self-incrimination and Sixth Amendment right to present a defense.

The interesting question is why the defense appears to be backpedaling from its earlier position.  A faulty memory defense is difficult to establish without the defendant's testimony because there is no witness who can say what the defendant did and did not remember, or why the person was distracted.  Offering evidence of what could have occupied Libby's attention may not be admissible without his testimony as to what exactly he was focusing on, and how he could have made the mistake regarding his conversations with the reporters.  The District Court may not allow evidence to show what might have been on his mind.  Defenses centered on the defendant's lack of intent often pressure the person to testify, and it is not uncommon that evidence is excluded because it would allow the jury to speculate.

In a sense, Libby has already testified because Special Counsel Patrick Fitzgerald played approximately eight hours of the grand jury testimony that is the basis for the perjury charge.  I have not heard of a perjury case in which that much testimony of the defendant's testimony was provided to the jury, although it may happen in other cases.  The government's strategy in offering the entire body of testimony may be to put Libby in a position where it is too dangerous for him take the witness stand in his defense.  Having heard the explanations to the grand jury, it would be difficult for him to take a different position at trial, and he opens himself to the possiblity of being impeached by any inconsistency between the trial and grand jury testimony.  Libby's brief stating that he may not testify could be an acknowledgement that the government's tactic has effectively prevented him from testifying. 

His brief states that "any errors in his statements and testimony resulted form confusion, mistake, or faulty memory rather than deliberate deception."  The government's witnesses testified that they provided the information about Plame to Libby, and he was rather insistent about rebutting the charges made by her husband, Joseph Wilson.  Asking the jury to find "confusion, mistake, or faulty memory" when they've heard the grand jury testimony but without hearing from Libby may well be impossible.  (ph)

Download libby_state_of_mind_brief_feb_5_2007.pdf