If a prosecutor calls him as a witness, Vice President Dick Cheney probably could not avoid testifying in his former chief of staff's perjury trial, legal experts said on Thursday.
"There may be significant issues of executive privilege and significant issues of classified information. But there are obviously significant factual issues that bear on the charges the prosecutor has brought" in the CIA leak investigation, said former federal prosecutor E. Lawrence Barcella Jr.
"So there is a far better than average chance that you are going to see the vice president sitting in the witness chair" if he is summoned, Barcella said.
In a court filing late on Wednesday, Special Counsel Patrick Fitzgerald suggested Cheney would be a logical prosecution witness because he could authenticate notes he jotted on a copy of a New York Times opinion column by a critic of the US-led war in Iraq.
Fitzgerald said Cheney's state of mind at the time he jotted those notes is "directly relevant" to the perjury and obstruction of justice charges against Lewis Libby, the vice president's former top aide.
Libby faces trial in January on charges that he lied to FBI agents and a federal grand jury about how he learned CIA officer Valerie Plame's identity and what he later told reporters.
But former federal prosecutor Ty Cobb said Fitzgerald's revelation about using Cheney as a witness seems like an act of desperation. "You don't play that card unless you think you are in danger of being shut down," Cobb said.
Cobb said he doubts Libby's case will go to trial because of the enormous amount of classified evidence involved. A key element of Libby's defense is that he was too preoccupied with heady, national security issues to leak Plame's CIA affiliation to reporters as a way to strike back at her husband, former US ambassador Joseph Wilson, for his criticism of the administration's push to invade Iraq.
Fitzgerald's filing, Cobb said, was a signal to US District Judge Reggie Walton, who has expressed concern about the amount of classified information the prosecutor may try to keep Libby from using in his defense.
"Now Fitzgerald's pitch is, `This goes all the way up in the White House. Judge, don't shut me down,'" Cobb said.
The prosecutor has already raised the possibility that Libby's lawyers are trying to commit "greymail," a term used to describe how former government officials force the government to dismiss their cases or see its biggest secrets revealed during their trials.