This is not quite as simplistic as it appears, which is why "The lack-of-memory defense has worked with varying degrees of success in controversies from ran-Contra to Whitewater." It goes to the legal issue of mens rea. That is, did the defendant have the criminal intent necessary to find him in violation of criminal law? To put it as simply as possible, it's not just the act, it's the attitude.
The lawyer for Vice President Dick Cheney's former top aide is outlining a possible criminal defense that is a time-honored tradition in Washington scandals: A busy official immersed in important duties cannot reasonably be expected to remember details of long-ago conversations.
Friday's indictment of I. Lewis "Scooter" Libby involves allegations that as Cheney's chief of staff he lied to FBI agents and a federal grand jury.
Libby, who resigned immediately, was operating amid "the hectic rush of issues and events at a busy time for our government," according to a statement released by his attorney, Joseph Tate.
"We are quite distressed the special counsel (Patrick Fitzgerald) has not sought to pursue alleged inconsistencies in Mr. Libby's recollection and those of others and to charge such inconsistencies as false statements," Tate continued.
"As lawyers, we recognize that a person's recollection and memory of events will not always match those of other people, particularly when they are asked to testify months after the events occurred."
So the classic criminal defense is usually some variation of "He didn't mean to do it." That is, when the crime is committed in front of the law enforcement officers (one of the peculiarities of perjury and obstruction of justice. The latter, by the way, apparently carries a harsher sentence than perjury. Who knew?). Because at that point, it's kind of hard to argue: "I didn't do it!"
So this is very serious, and Libby faces extreme problems trying to convince a jury he's not Cheney's Chief of Staff and an insider's insider, but instead he's just Bart Simpson. And, as Jane Hamsher, Fitzgerald made it clear yesterday that the investigation into the crime of "outing" Valerie Plame hasn't finished yet, because another crime was committed which blocked that investigation.
It ain't the cover up; it ain't the politics; it's the criminal activity. And there seems to be a lot of it here.