Special Counsel Patrick Fitzgerald suggested Cheney would be a logical government witness because he could authenticate notes he jotted on a July 6, 2003, New York Times opinion piece by a former U.S. ambassador critical of the Iraq war.
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 he learned about CIA officer Valerie Plame's identity and what he subsequently 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."
In the Times article, former U.S. Ambassador Joseph Wilson accused the Bush 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 the allegation wound up in President Bush's 2003 State of the Union address.
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?"
CBS News Legal Analyst Andrew Cohen is not surprised at word that Cheney might be called as a witness.
"Of course Cheney is a potential witness," says Cohen. "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."
"Whether Cheney testifies or not depends entirely upon what he would be asked," Cohen explains. "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."
"Like any other witness may do, I'm sure the Vice President will talk to his own attorneys, and certainly executive branch attorneys, to determine how to proceed if and when he is called in the case," says Cohen. "And I'm sure on some level certain governmental privileges, like executive privilege, will be considered. And if that happens you'll have a Justice Department attorney fighting with a White House attorney over what ought to happen."
Libby told the agents and the grand jury that he believed he had learned from reporters that Plame is married to Wilson and had forgotten that Cheney had told him that in the weeks before Wilson's article was published.
In his grand jury testimony, Libby said Cheney was so upset about Wilson's allegations that they discussed them daily after the article appeared. "He was very keen to get the truth out," Libby testified, quoting Cheney as saying, "Let's get everything out."
Cheney viewed Wilson's allegations as a personal attack because the article suggested that the vice president knew that Wilson had discounted old reports that Iraq had tried to buy uranium yellowcake from Niger to build a nuclear weapon.
Eight days after Wilson's article, conservative syndicated columnist Robert Novak identified Plame and suggested that she had played a role in the CIA's decision to send Wilson to Niger.
Fitzgerald contends that Plame's status as a CIA officer was classified and that Libby was told that disclosing her identity could pose a danger.
The prosecutor wants to use Cheney's notes on the Wilson article to corroborate other evidence he has that Libby lied about outing Plame to reporters.
In a filing last week, Libby's lawyers said Fitzgerald would not call Cheney as a witness and would have a hard time getting the vice president's notes admitted into evidence.
"Contrary to defendant's assertion, the government has not represented that it does not intend to call the vice president as a witness at trial," Fitzgerald wrote. "To the best of government's counsel's recollection, the government has not commented on whether it intends to call the vice president as a witness."