I am toying with a very intriguing idea on the Libby trial; at this point, it is pre-developmental, but I thought I would toss it out for discussion.
Our friends on the left have dreams of Fitzgerald getting Cheney on the stand and getting him to admit that he ordered the outing of Valerie Plame. I am now sort of wondering whether that might be Cheney's strategy. And if it might be, it would be very cool to have made that call ahead of time - let's let everyone else be surprised.
There are some obvious problems - for example, if Cheney testifies that he "ordered" Libby to out Plame, then we will be left wondering how Libby failed to remember that order during his grand jury testimony.
However, part of the prosecution argument is that Libby may have lied to protect himself or his boss from legal problems or political embarrassment. But really - does Cheney seem like the type to get embarrassed?
And I am far from clear on the question of whether Cheney faced any legal peril at all - as he noted in the discussion of the NIE, classification and declassification are Executive Branch functions held by the President and Vice President (as described in the relevant Executive Order from March 2003.) And regarding Ms. Plame, the Intelligence Identities Protection Act requires that, in addition to having classified status, it must be the case that "the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States". L'etat, c'est Cheney! Or perhaps not, but if the Vice President authorizes her disclosure, it may be legally difficult to sustain the notion that "the United States" is trying to keep her secret.
In which case, Cheney never faced any legal jeopardy for discussing or authorizing her disclosure. Taking note of his push for an expansive view of Executive power, he probably could have been sold on this view quite easily.
Which suggests that Libby was not lying to save Cheney from any legal problems. There might have been some political heat, and there were Bush's statements about finding the leakers. However, as of October 2003, the Bush/Cheney White House crew did not know about Armitage's leak to Novak (that was Powell's little secret), so in their minds, a thorough investigation may have seemed to be appropriate.
Let me finish where I started - how did Cheney "order" it in a way that Libby forgot? There is a small hint in the recent Waas piece:
Fitzgerald then bore down on the witness: "And are you telling us under oath that from July 6th to July 14th you never discussed with Vice President Cheney whether Mr. Wilson's wife worked at the CIA?"
Libby replied: "No, no, I'm not saying that. On July 10 or 11 I learned, I thought anew, that the wife—that the reporters were telling us that the wife worked at the CIA. And I may have had a conversation with the Vice President either late on the 11th or on the 12th in which I relayed that reporters were saying that." As Libby further told it, if he discussed with Cheney that Plame was a CIA officer, he had only done so in the context of saying that the information was only an unsubstantiated rumor that he had heard from Tim Russert.
So, Libby mentioned to Cheney his tidbit that reporters had the story; this could be Karl Rove telling Libby that Novak had the story, as described in the indictment:
21. On or about July 10 or July 11, 2003, LIBBY spoke to a senior official in the White House ("Official A") who advised LIBBY of a conversation Official A had earlier that week with columnist Robert Novak in which Wilson's wife was discussed as a CIA employee involved in Wilson's trip. LIBBY was advised by Official A that Novak would be writing a story about Wilson's wife.
Cheney dismissed the news with a "nothing to see hear" grunt that, in Cheney's mind, meant that talking about Plame was fine, albeit inconsequential; Libby did not pick up on his boss's subtle body language; and here we are.
Hmm. For a non-post, that was quite a lot of words. Anyway, I am looking for ideas on the legal argument (Cheney had no reason for fear), the political argument, and some sort of rationalization the defense might offer that would reconcile Cheney's approval with Libby's flawed memory.
Yes, this looks like a long-shot. But after several hours of noodling, I am convinced it will nag at me until I hit "Publish".