Cheney, Witness for the Prosecution
Of course Vice President Dick Cheney is a likely witness in any perjury case against his former aide, I. Lewis Libby. He has personal information about a material part of a criminal case and it would malpractice on the part of Special Counsel Patrick Fitzgerald not to consider him as a potential witness. Now, whether the Veep ultimately makes it onto the witness stand or not at Libby's trial is another matter. Between now and then there are about a dozen things that could or would happen to prevent Cheney from starring in the case against his former employee.
The first thing that could happen, of course, is that he could not be called to the witness stand at all. In the court filing that started last night's bulletin-o-rama on this story, all Fitzgerald was quoted by the Associated Press as telling the court was that "contrary to the defendant's assertion,the government has not represented that it does not intend to call the vice president as a witness at trial. To the best of the government's counsel's recollection, the government has not commented on whether it intends to call the vice president as a witness." That's a far cry from an affirmative statement that Cheney is loosening up in the bullpen.
Sure, there are other portions of the filing in which Fitzgerald offered logical explanations for why Cheney would be a witness in the case. But just because someone is a logical witness doesn't mean they are ultimately going to find themselves on the witness stand. Take former Enron official Richard Causey as only the most recent example of a prime witness who never gets asked to show up at trial. Causey was a co-defendant of Kenneth Lay and Jeffrey Skilling right up until the eve of their still-continuing fraud and conspiracy trial when the former accounting chief cut a plea deal with prosecutors. Obviously, he is a big part of the story of Enron, right? But neither side called him. There are all sorts of factors, strategic, tactical and otherwise, that determine whether a special witness will testify at trial.
Other legal and political pressures aside, whether Cheney testifies or not depends entirely upon what he would be asked on the witness stand. If he is asked to talk only about what Libby said to him and what he said to Libby, which seems a reasonable presumption given all that we know about the interaction between the two on the subject of former CIA agent Valerie Plame, it seems to me it will be hard for the Vice President to successfully assert an "executive" or "national security" privilege against testifying. I mean, if the Watergate case teaches us anything it is that the executive branch cannot always and forever hide behind the wall that separates the branches, especially when a person's liberty is on the line in a criminal case.
Like any other witness may do, I'm sure the Vice President is talking to his own attorneys, and certainly executive branch attorneys, to determine how to proceed if and when he is called in the case. And if he is called, we'll all have a chance to see the extraordinary scenario in which a Republican-appointed Justice Department lawyer dukes it out with a Republican-appointed White House lawyer to determine whether a super-secret vice president has to testify on behalf of the government and against man who exercised his will for all those years. Last night's bulletins didn't bring big news. But big news may be coming and sooner rather than later.
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