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who ditates to CNN how the game should be played. Read this transcript;
BLITZER: All right, thanks very much, Brian Todd over at the courthouse today.
Let's get some legal analysis, what this all means.
Joining us, our senior legal analyst, Jeffrey Toobin. He's in New York,. And Victoria Toensing, she's a former federal prosecutor. She's joining us on the phone.
Vickie, give us your reaction to what has happened.
VICTORIA TOENSING, FORMER JUSTICE DEPARTMENT OFFICIAL: Well, I read the indictment -- indictment out here in California, where I'm -- I'm at a spa and not supposed to be doing such things.
But I guess my initial reaction, Wolf, was, if this is a cover- up, it's about something that was not illegal. And so, it's -- it's an amazing series of facts put in the indictment that don't make sense to me, because every single thing that Scooter Libby could have admitted to would not have been a violation of the law.
BLITZER: But what if -- if he was lying to the grand jury and insisting he heard about -- Victoria, about Valerie Plame from journalists, as opposed from government officials, that sounds, at least according to the prosecutor, like a flat-out lie.
TOENSING: Well, but here's -- here's the vulnerability in the prosecutor's case.
And that is, is to admit that you also heard it from the CIA. There's nothing in the indictment that says that he was told it was classified and that he wasn't supposed to reveal it, which would have been a significant fact I would have put in, if I had been writing this charge and I had had that evidence. So, if that never occurred, then -- you know, then the jury's going to be looking at it.
If you're the defense attorney, you phrase it as, this is one person's memory and this is another person's memory.
BLITZER: It's not just one person, though. There are at least three journalists who claim they learned about this CIA operative from -- from Scooter Libby. And there are at least three or four government officials who apparently have gone before the grand jury and said they told him a -- a lot earlier about her identity.
TOENSING: Well, Wolf, that could well be so, but if he remembers -- it was all over a period of 48 hours, and -- and if -- if you want me to -- to, you know, look at it from a defense viewpoint, you would say, people sometimes can't remember when things happen all in a -- in a flurry of...
BLITZER: All right.
Well, let me...
TOENSING: ... who said what when.
BLITZER: Let me interrupt, Vickie, for a second.
Jeff Toobin is our senior legal analyst.
And the attorney who represents Libby, Joseph Tate, basically is making that -- that argument: Well, the recollections can differ when you look back over a long period of time, Jeff.
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: That's right.
And I think Victoria is really sort of outlining a lot of what the defense will be. Why did he lie when he's not covering up something that's illegal? He could have admitted it. It was just an honest mistake. That's one defense.
Another defense is, he didn't remember the -- the -- the -- the facts well enough. That's a -- that's a common defense in a perjury, false statement case.
You know, they're -- they're -- they're not always successful, but -- but they are -- they are perfectly legitimate defenses. Another thing I think is -- is -- is worth thinking about is, it will -- it will be in the defense's interests to try to make this case as complicated as possible, to say that this is really about a dispute about the war in Iraq, about the competence of the CIA, and you need to have that full, muddy context.
What the prosecution is going to say at the trial is no, no, no, we don't want to hear about the war in Iraq. We don't want to hear about the CIA. This is simply a case about lying -- and keep it as narrow as possible.
And Judge Reggie Walton, who is going to be the judge here, is going to have a real tug-of-war between the two sides about how much extraneous context evidence to allow...
BLITZER: All right.
TOOBIN: ... from both sides.
BLITZER: What about that, Vickie?
TOENSING: Well, but, Jeff, I don't even think you have to make it about the war in order to say that the CIA's conduct is at issue.
You know, what are they doing sending somebody over to Niger who is not qualified for the job, who doesn't have background in that area, at the request of his wife, and then allowing him -- and this is the key thing -- him to write about it in "The New York Times" as an op-ed? I can't do that when I represent somebody with CIA -- in a CIA situation.
What did they think was going to happen after this person was criticizing the administration in "The New York Times"? People were just going to say, well, that's just nice? Weren't they going to say, who is he?
BLITZER: All right, button it up, Jeff.
TOOBIN: But -- but the argument Victoria is making will be met by the argument: We don't care why Joseph Wilson went to Niger.
The fact is, he did. And Vic -- and Scooter Libby testified about it in the grand jury. We don't care about the context.
TOENSING: But, Jeff...
TOOBIN: That's what the prosecutors will argue.
TOENSING: .. that goes to the valid classification.
BLITZER: All right.
TOENSING: That goes to the valid..
BLITZER: Well...
TOENSING: The validity of the classification of her name.
BLITZER: Victoria Toensing, Jeff Toobin, we're going to continue this down the road, but not today, because we are out of time.
But thanks to both of you for sharing some thoughts with us.
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