WASHINGTON – If a prosecutor calls him as a witness, Vice President Dick Cheney probably can't avoid testifying in his former chief of staff's perjury trial, legal experts said Thursday.
"There may be significant issues of executive privilege and significant issues of classified information. But there are obviously significant factual issues that bear on the charges the prosecutor has brought" in the CIA leak investigation, said former federal prosecutor E. Lawrence Barcella Jr.
"So there is a far better than average chance that you are going to see the vice president sitting in the witness chair" if he is summoned, Barcella said.
In a court filing late Wednesday, Special Counsel Patrick Fitzgerald suggested Cheney would be a logical prosecution witness because he could authenticate notes he jotted on a copy of a New York Times opinion column by a critic of the U.S.-led war in Iraq.
Fitzgerald said Cheney's state of mind at the time he jotted those notes is "directly relevant" to the perjury and obstruction of justice charges against I. Lewis "Scooter" Libby, the vice president's former top aide.
Libby faces trial in January on charges that he lied to FBI agents and a federal grand jury about how he learned CIA officer Valerie Plame's identity and what he later told reporters.
But former federal prosecutor Ty Cobb said Fitzgerald's revelation about using Cheney as a witness seems like an act of desperation. "You don't play that card unless you think you are in danger of being shut down," Cobb said.
Cobb said he doubts Libby's case will go to trial because of the enormous amount of classified evidence involved. A key element of Libby's defense is that he was too preoccupied with heady, national security issues to leak Plame's CIA affiliation to reporters as a way to strike back at her husband, former U.S. Ambassador Joseph Wilson, for his criticism of the administration's push to invade Iraq.
Fitzgerald's filing, Cobb said, was a signal to U.S. District Judge Reggie B. Walton, who has expressed concern about the amount of classified information the prosecutor may try to keep Libby from using in his defense.
"Now Fitzgerald's pitch is, 'This goes all the way up in the White House. Judge, don't shut me down,"' Cobb said.
The prosecutor has already raised the possibility that Libby's lawyers are trying to commit "graymail," a term used to describe how former government officials force the government to dismiss their cases or see its biggest secrets revealed during their trials.
White House spokesman Tony Snow referred questions about Cheney's possible testimony to the Justice Department, which, in turn, referred reporters to Fitzgerald's office. Randall Samborn, a spokesman for the prosecutor, declined comment.
In the Times op-ed on July 6, 2003, Wilson accused the Bush administration of twisting intelligence on Iraq to justify going to war.
In 2002, the CIA sent Wilson to Niger to determine whether Iraq tried to buy uranium yellowcake from Niger to build a nuclear weapon. Wilson discounted the reports. But a version of the allegation, attributed to British intelligence, wound up in President Bush's State of the Union address in 2003.
Cheney wrote on the article, "Have they done this sort of thing before? Send an ambassador to answer a question? Do we ordinarily send people out pro bono to work for us? Or did his wife send him on a junket?"
Libby told a grand jury that Cheney was so agitated about Wilson's allegations that they discussed them daily after the article appeared.
Eight days after Wilson's article, syndicated columnist Robert Novak identified Plame and suggested that she had played a role in the CIA's decision to send Wilson to Niger.
Fitzgerald wants to use Cheney's notes on the Wilson article to corroborate evidence that he says shows Libby knew about Plame's CIA status -- from Cheney and other government officials -- and lied when he told a grand jury that he learned about her from reporters.
Cheney would have a tough time arguing that his notes on Wilson's article qualify as a national security secret, said attorney Stanley M. Brand, a former general counsel to the U.S. House of Representatives.
"He's commenting on something he read in the press, and that is hardly a national security issue," Brand said.