A failure of recollection haunts witnesses in Libby case

Byron York:

A pattern is emerging at the Lewis Libby trial, now in the middle of its third week in the federal courthouse in Washington. The pattern is this: A witness called by prosecutor Patrick Fitzgerald delivers testimony that seems clearly damaging to Libby, strongly suggesting that Libby lied when he testified before prosecutor Patrick Fitzgerald’s grand jury in the CIA-leak affair. And then Libby’s lawyers take over, suggesting that the witness’s memory is so selective, or so flawed, or so sketchy as to render his or her testimony useless.

Each day, most news reports from the trial focus on the damage done to Libby’s case; there are lots of headlines like “Ex-Aide Contradicts Libby” and “Reporter’s Account Hurts Libby’s Defense.” But each day, the question is not what headline writers are taking from events in the courtroom but what jurors are making of it. Are they seeing an overwhelming case for Libby’s guilt? Or are they seeing a case in which everyone involved seems to have forgotten something — and no one is truly credible? We just don’t know.

The latest witness to contradict Libby and then find her credibility seriously challenged is Judith Miller, the former New York Times reporter who went to jail for 85 days in an effort to avoid testifying in the case. Miller told the jury that she interviewed Libby three times in the course of three weeks in the summer of 2003, on June 23, July 8, and July 12. Each time, she said, Libby mentioned former ambassador Joseph Wilson, his trip to Niger, his attacks on the Bush administration — and his wife.

Much of Miller’s testimony focused on her first meeting with Libby, a June 23, 2003 interview that took place in the Old Executive Office Building next to the White House. Questioned by prosecutor Fitzgerald, Miller offered a vivid description of Libby’s state of mind. “Mr. Libby appeared to me to be agitated and frustrated and angry,” she testified. “He is a very low key and controlled guy, but he seemed annoyed.”

“Did he indicate what he was annoyed at?” Fitzgerald asked.

“He was concerned that the CIA was beginning to backpedal to try to distance itself from the unequivocal intelligence estimates it had provided before the war,” Miller said. She told the jurors that Libby had called the CIA’s action “a perverted war of leaks.”

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You did not always remember that June 23 meeting so well, Jeffress said to Miller. In fact, he continued, Miller, after resisting a subpoena, after going to jail, and after thinking at great length about her contacts with Libby, failed to mention the June 23 meeting at all when she first appeared before prosecutor Fitzgerald’s grand jury.

“That conversation on June 23 in the Old Executive Office Building,” Jeffress said. “When you first appeared before the grand jury, you didn’t remember that at all?”

“Nothing about it,” Miller answered.

“And today you’ve described that meeting in great detail.”

“That’s correct,” Miller said. Quickly thinking better of her answer, she added, “No, not in great detail. The highlights of it.”

But Miller knew at the time about all the controversy over the CIA leak, didn’t she? Yes, she said. She remembered the Robert Novak column, didn’t she? Yes. She remembered that a criminal investigation was opened into the matter? Yes. She remembered writing a column defending her conduct in the affair? Yes. She remembered talking to executives at the Times about the whole thing? Yes. So why didn’t she remember her first meeting with Libby about the matter?

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He goes on with a detailed transcript of the cross examination in which Miller says she did not remember the meeting and that she did not have a good memory. When you see the cross examination put up against the direct testimony I think she makes supports Libby's theory of the case by implication. You should read the entire piece.