HILLYER: Scooter Libby, on the record

OPINION:

“Could [I] have misspoken? Yes, I am male, I’m over 50. By definition, I can misspeak.”

- Ambassador Joe Wilson, in a July 18, 2004, interview with CNN’s Wolf Blitzer.

“Given the incredible pace and scope of my work during that [relevant] period and the subsequent passage of time, I simply did not recall the sequence of events. … I had completely forgotten [who had suggested a key idea]. I had forgotten [who received a call from whom]. … I had answered all the questions truthfully, and to the best of my ability. Still, a little voice in my head was saying it felt like a setup. In retrospect, it was clear they weren’t seeking information, but simply confirming their already closed conclusions.”

- Former CIA case officer Valerie Plame Wilson, in her memoir “Fair Game: My Life as a Spy, My Betrayal by the White House.”

Memory can be unreliable, and misstatements can happen despite pure intentions. It’s only fair game to point this out.

So say Valerie Plame Wilson, former CIA case manager and Vanity Fair cover girl, and her husband, Joseph C. Wilson IV, former ambassador to Gabon and extravagant self-promoter. Too bad the Wilsons, a power-mad federal prosecutor, an officious federal judge, a confused jury and a badly misled president wouldn’t apply those same common-sense considerations to I. Lewis “Scooter” Libby, wrongly convicted of perjury in the case stemming from State Department official Richard Armitage’s public identification of Mrs. Wilson as a CIA employee.

For the very first time since his conviction, Mr. Libby - former chief of staff to then-Vice President Dick Cheney - went on the record about his case.

As both Wilsons tried to explain away, each of them has been caught making significant false claims. Each claimed memory played tricks on them. The ambassador even justified one of his key falsehoods as “a little literary flair.” Yet neither Wilson was convicted of a felony. Mr. Libby was. He paid a quarter-million-dollar fine, served 400 hours of community service and had his law license taken away. All of this over a single dispute about whether his memory or that of TV journalist Tim Russert was correct, about a months-past conversation that had nothing to do with the actual leak of Mrs. Wilson’s name.

Never mind that Mr. Russert’s own memory had proved flagrantly untrustworthy in a previous instance. Never mind that equally famous journalist Bob Woodward testified that his own notes of a near-simultaneous conversation with Mr. Libby indicated that Mr. Woodward might have said to Mr. Libby what Mr. Libby remembered being told by Mr. Russert - in other words, that the conversations easily and innocently could have become conflated in Mr. Libby’s mind. And never mind that Mr. Libby was never shown to have a motive for lying about his conversation with Mr. Russert.

In our interviews, Mr. Libby explicitly and repeatedly asserted his innocence of knowingly misleading investigators. To this day, he says he thinks it was Russert who mentioned Mrs. Wilson’s name to him - but that either way, he remembers being surprised at hearing it from a journalist.

“America’s leading expert on the science of memory, Harvard professor Daniel Schacter, reviewed my case,” Mr. Libby said, “and he concluded that, ’As someone who has studied memory for a lifetime, I could not render a fair decision based on the evidence before the jury.’”

U.S. District Judge Reggie B. Walton did not allow the Libby defense team to introduce scientific testimony about how memory works, and jurors later said they would have liked to have heard such evidence.

“What’s startling,” Mr. Libby said last week, “is that, at the dawn of the 21st century, we had a trial that excluded relevant, scientific evidence. And it’s startling that the jury was prevented from hearing about the very kinds of evidence that scientists say are critical to understanding what happened.”

Even worse, Judge Walton did not even allow Mr. Libby access to his own files so he could reconstruct the sequence of events in question. “It was an impossible position,” Mr. Libby told me. “No defendant in America that I know of is denied the right to see his own files.”

All of this arises anew because of the hit film “Fair Game,” starring Sean Penn - in his usual George W. Bush-is-evil mode - as Ambassador Wilson. The movie portrays Mr. Libby as a sinister mastermind behind the manipulation of intelligence to portray Iraq as a nuclear-armed power and behind an effort to leak Mrs. Wilson’s name in payback for the Wilsons exposing the fraudulence of the nuke claims. The movie is highly entertaining but deeply dishonest.

The record shows that Scooter Libby did not leak Mrs. Wilson’s name to the press, nor did he direct others to do so. The record shows he openly acknowledged that Mr. Cheney had told him Mrs. Wilson’s status (although not her name) - so he wasn’t, as theorized, trying to cover up for his boss. The record also shows, curiously enough, that when Russert was first interviewed by the FBI, even he said it was possible that Mr. Libby’s description of events could have been correct. The FBI report reads: “Mr. Russert acknowledged that he speaks to many people on a daily basis and it is difficult to remember some specific conversations, particularly one which occurred several months ago.”

That, of course, was the exact substance of Mr. Libby’s defense.

In one ironically accurate line in “Fair Game” (albeit it a different context), Sean Penn/Joe Wilson says, “[T]hey served up Scooter Libby” to take the fall. Or, as Mrs. Wilson wrote in a different context in her memoirs, the entire prosecution of Mr. Libby “felt like a setup. In retrospect, it was clear they weren’t seeking information, but simply confirming their already closed conclusions.”

President Bush didn’t have the guts to pardon Mr. Libby. In a supreme act of political graciousness in the service of justice, President Obama should “serve up” the pardon Mr. Libby deserves.

Quin Hillyer is a senior editorial writer for The Washington Times.