In one of his old comedy routines, Steve Martin used to say that the two simplest words in the English language, guaranteed to get you out of any trouble, are “I forgot.” IRS knocks on your door because you haven’t paid taxes in five years ? I forgot. On trial for holding up a liquor store ? I forgot armed robbery is illegal.
Now, according to this report in the Washington Post, it appears that Scotter Libby may take a crack at using the “I forgot” defense in real life.
I. Lewis Libby and Karl Rove, one facing indictment, the other hoping to avoid one, are pursuing a similar strategy to prove their innocence in the CIA leak case: showing they are guilty of memory lapses, not lies.
Libby, indicted Friday on five counts of lying and obstructing justice, contends that any misleading information he provided to the grand jury or federal investigators was the result of a hectic schedule and foggy recollections, according to people familiar with his thinking.
“Mr. Libby testified to the best of his recollection on all occasions,” Joseph A. Tate, Libby’s lawyer, said in his first statement on the case, released Friday. Libby’s friends plan to set up a legal defense fund soon to help him fight the charges, according to one person familiar with the effort.
(….)
To prove Libby lied, Fitzgerald will rely on the testimony of three journalists — Russert, Time magazine’s Matthew Cooper and the New York Times’ Judith Miller — as well as a number of government officials who provided information about how Libby learned about Plame.
To prove he did not lie, Libby will contend it is entirely plausible that a high-level staffer juggling a number of important issues could forget how he first learned an important piece of information and seek to show he never purposely misled investigators or the grand jury. In the statement, Tate talked about Libby’s involvement in a “hectic rush” of issues “at a busy time of our government.”
As ridiculous as it might sound, its not entirely a bad defense. Since Libby is charged with perjury, Fitzgerald will have to prove that he knowingly and purposely misled the grand jury and will have to prove this beyond a reasonable doubt. If Libby comes across as credible, its entirely possible that he could provide the jury with enough doubt to deny Fitzgerald a conviction. Assuming there is no smoking gun out there, such as a handwritten memo from Libby saying something like “I think I need to lie to the grand jury”, this may just work.
And, if it doesn’t there may be another defense in the works:
Another possible defense, a person close to Libby said, is that it makes no logical sense for a person as smart as Libby to engage in a pattern of lies and then encourage reporters to testify to investigators, as Libby did when he freed journalists from confidentiality agreements.
I would call this the “I can’t possibly be that stupid” defense. If Libby’s lawyers start relying on this, I would take it as a sign that Plan A isn’t working and Libby’s goose is probably cooked.
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