Special Counsel Patrick Fitzgerald suggested in a court filing Wednesday that Cheney would be a logical witness for the prosecution because the vice president 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" is "directly relevant" to whether I. Lewis "Scooter" Libby, the vice president's former top aide, lied to FBI agents and a federal grand jury about how Libby learned CIA officer Valerie Plame's identity and what he later told reporters.
Libby "shared the interests of his superior and was subject to his direction," the prosecutor wrote.
"Therefore, the state of mind of the vice president as communicated to (the) defendant is directly relevant to the issue of whether (the) defendant knowingly made false statements to federal agents and the grand jury regarding when and how he learned about (Plame's) employment and what he said to reporters regarding this issue," according to the filing.
Cheney's spokeswoman, Lea Anne McBride, said, "Since the inquiry relates to a case in the courts, I refer you to the Office of the Special Counsel."
"Of course Cheney is a potential witness," CBS News legal analyst Andrew Cohen said. "He has personal information about a material part of a criminal case and it would be malpractice on the part of the prosecutor to not consider him a witness. Now, whether he makes it onto the witness stand or not at trial is another matter. There are a dozen things that could or would prevent that from happening."
Cohen adds that whether Cheney testifies or not depends on what he would be asked. "If he is asked to talk about Libby said to him and what he said to Libby, and if that information isn't somehow classified or otherwise private, there is an excellent chance that Cheney will have to testify, either in open court or in a deposition that is later shown to jurors," Cohen said.
In the Times op-ed on July 6, 2003, former U.S. Ambassador Joseph Wilson, Plame's husband, accused the 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?"