Libby defense: I forgot

WASHINGTON – Lewis “Scooter” Libby and Karl Rove, the first facing indictment, the other hoping to avoid indictment, 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 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 case.

“Mr. Libby testified to the best of his recollection on all occasions,” Joseph Tate, Libby’s lawyer, said in his first statement on the case, released Friday. Libby’s friends plan to set up legal defense fund soon to help him fight the charges, according to one person familiar the effort.

Rove, who sources said narrowly escaped indictment through last-minute negotiations, is working privately to convince special prosecutor Patrick Fitzgerald that he did not lie to a federal grand jury about his role in the disclosure of CIA operative Valerie Plame’s identity. With Fitzgerald threatening to indict Rove, the White House deputy chief of staff provided him with new information this week that prompted Fitzgerald to rethink charging him with making false statements, according to two people close to the case.

A source close to Rove said Bush’s closest adviser stands ready to provide the prosecutor with anything else he needs in the days ahead, and remains optimistic an indictment is not forthcoming. Rove expects a decision soon.

Fitzgerald “understands what is at stake here,” said a source close to Rove. “We are going to find out if we are going to get good or bad news.”

Fitzgerald has largely completed the 22-month investigation into whether any Bush administration official leaked Plame’s name without charging anyone with violating the laws that make such actions illegal in some circumstances.

Instead, Fitzgerald indicted Libby on two counts of making false statements, two counts of perjury and one count of obstructing justice. He has not concluded his investigation of Rove, which lawyers people close to the case say focuses on at least one misleading statement Rove made to the federal grand jury hearing the case.

While some Republicans dismissed the charges against Libby as technicalities unrelated to deliberately unmasking a CIA agent, allegations of lies put Libby – and possibly Rove – in serious legal jeopardy and are creating a new set of political problems for the Bush White House.

“Libby is tripped up over the investigation, not over the crime, and I think that is significant,” said Rep. Jack Kingston, R-Ga. Still, “the impression you get is he was a good foot soldier for many years, but he stepped over the boundary in his job, and no one is above the law.”

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