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Libby's Memory Famously Faulty, Colleague Says

RENEE MONTAGNE, host:

The defense is expected to rest today in the trial of Lewis Libby without calling either the defendant or his former boss, Vice President Cheney. Libby is on trial in Washington, charged with lying to a grand jury and the FBI about his role in the leak of a CIA operative's identity.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: At lunchtime yesterday, Vice President Cheney's motorcade raced down Constitution Avenue. With sirens blaring, the motorcade zoomed past the federal courthouse on its way to Capitol Hill. And that was the closest the vice president would get to the Libby trial. A short while later, Libby's defense lawyer announced in open court that neither Cheney nor his one-time chief of staff would be testifying at the obstruction of justice and perjury trial.

After the announcement, Judge Reggie Walton asked Libby if he was waiving his right to testify. Libby, standing, said he was. The conventional wisdom among white-collar criminal defense lawyers is that when a defendant is charged with perjury, he's doomed if he doesn't explain himself to the jury. In this case, though, the jury has already heard Libby's explanation via eight hours of tape-recorded grand jury testimony, and Libby's lawyers may well have calculated that matters could only get worse if he faced yet another round of lethal interrogation from prosecutor Patrick Fitzgerald.

As to Cheney, the prosecutor has already established that the vice president was angry about an op-ed piece written by former Ambassador Joseph Wilson in July of 2003. In that article, Wilson accused the Bush administration - and by inference, Cheney in particular - of twisting intelligence to justify the war in Iraq.

So putting Cheney on the stand risked underlining the prosecution's argument that the vice president and Libby were consumed with rebutting the Wilson story back then and that Libby was part of a White House effort to discredit Wilson by, among other things, leaking the fact that Wilson's wife work for the CIA and suggesting that she'd sent her husband on a fact-finding trip as a boondoggle.

Instead of Cheney, defense lawyers yesterday put on the witness stand one of Libby's former deputies, John Hannah, who now serves as national security adviser to the vice president. Hannah testified to a litany of urgent national security subjects and terrorist threats that Libby was concerned with at the time of the Wilson episode. And Hannah also testified that Libby had a rotten memory, often forgetting where he learned information.

Sitting at the defense table, Libby smiled when Hannah said that he often briefed Libby in the morning about situations and made recommendations that Libby would then appropriate as his own and quote back to Hannah later in the day.

Today, the judge is to rule on whether the jury can hear testimony from three CIA officers who briefed Libby every morning in 2003. Yesterday, Prosecutor Fitzgerald accused the defense of a bait-and-switch strategy in which the defense got all kinds of evidence admitted that's relevant to Libby's 2003 state of mind because Libby was going to testify. Now the prosecutor alleges the defense still wants that evidence submitted without any ability to cross-examine the defendant about his state of mind.

Closing arguments are expected next week. The prosecutor will likely tell the jury that the criminal justice system cannot function if witnesses called to testify in major investigations are permitted to lie. Fitzgerald will, in all probability, seek to distinguish Libby from other leakers by noting that others told the truth about their role and Libby did not.

Libby's lawyers will likely argue that he was overwhelmed by national security responsibilities, and they'll tell the jury that whatever mistakes Libby made in his grand jury testimony, they were good faith mistakes of memory, not lies intended to cover up wrongdoing.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.