A Historic Moment if Cheney Testifies Live, as Expected

The New York Times
A Historic Moment if Cheney Testifies Live, as Expected
By DAVID JOHNSTON

WASHINGTON, Feb. 11 — If he testifies as expected, Dick Cheney would be the first sitting vice president, at least in modern times, to appear as a witness in a criminal trial. And if he testifies in court, he may also be the first to give live testimony in defense of a subordinate’s actions on his behalf, legal historians said.

Mr. Cheney’s testimony as a courtroom witness for his former chief of staff, I. Lewis Libby Jr., would break with one of the closest historical parallels, when former President Ronald Reagan testified in 1990 via videotape as a defense witness in the trial of his former national security adviser, John M. Poindexter.

The Reagan videotape offered an insight into the unpredictability of criminal trials. His appearance seemed to have little direct impact on the trial, but it created a permanent historical record of his failing memory, which would have been preserved through a printed transcript had he appeared as a live witness but would not have caused the same impact as the widely broadcast videotape.

Courts have traditionally shown great deference to high-ranking executive branch officials, requiring them to testify only when they are thought likely to provide crucial testimony that cannot be obtained elsewhere through documents or other witnesses.

“One of the considerations is, you can’t start dragging the vice president or president away from their jobs,” said Theodore B. Olson, a lawyer in Washington who represented Mr. Reagan when he was asked to testify in Mr. Poindexter’s trial.

Even so, presidents and vice presidents have found themselves caught up in politically volatile inquiries. A few vice presidents were themselves the subjects of criminal proceedings, like Aaron Burr, who was tried for treason and acquitted in 1807 after he left office, and Spiro Agnew, who resigned in 1973 and pleaded no contest to tax and money laundering charges.

In more recent times, presidents and vice presidents have more frequently been questioned as witnesses, usually in private. But even an interview behind closed doors can prove embarrassing, as when a Congressional committee released President Bill Clinton’s videotaped deposition in 1998 to an independent prosecutor in the investigation of his involvement with Monica Lewinsky, a White House intern.

Vice President Al Gore was questioned in 2000 by Justice Department prosecutors in a campaign finance investigation, and when he was vice president in 1988, George H. W. Bush was interviewed by an independent prosecutor in the Iran-contra investigation. Those interviews were not made public and never forced either Mr. Gore or Mr. Bush to appear in court.

But no sitting vice president has testified in a criminal trial in recent times, said Joel K. Goldstein, a professor at the St. Louis University law school who has studied the vice presidency. Mr. Reagan was the last president to appear as a witness.

Unlike Mr. Cheney, who would appear as a voluntary witness, Mr. Reagan resisted testifying, primarily because his lawyers said he could shed little light on the obstruction issues in the trial, Mr. Olson said. “There are no hard and fast rules about a president’s testimony,” he said. “It really is a balancing process. Is this really necessary, or is there a less intrusive way to get the evidence?”

Richard W. Beckler, a lawyer for Mr. Poindexter, said he had wanted Mr. Reagan to appear as a trial witness in court, but accepted an appearance that would have far less impact. “We wanted him to testify live, but that motion got turned down,” Mr. Beckler said. As a result, Judge Harold H. Greene of Federal District Court settled on an arrangement in which Mr. Reagan testified, but via a videotaped deposition, which was later publicly released.

The deposition was taken in February 1990 in a closed courtroom in Los Angeles, a year after Mr. Reagan left office. The former president sat in a witness box. Judge Greene was on the bench. Prosecution and defense lawyers were in the court, along with Mr. Reagan’s lawyers, Justice Department lawyers representing the administration of George H. W. Bush and an interagency group monitoring the proceedings for inadvertent leaks of classified information.

The defense was permitted to ask Mr. Reagan 154 questions approved by the judge in advance. The procedure was taped to allow for the editing of any state secrets or other statements ruled inadmissible. But in the end, the eight-hour tape was played in its entirety at the trial.

On the tape, Mr. Reagan seemed cooperative, but he had trouble recalling many of the events surrounding the Iran-contra affair. After the trial, jurors said his testimony had a minimal impact on their decision to convict Mr. Poindexter on all five counts against him. A federal appeals court later threw out the conviction on all counts.

The showing of the tape had unforeseen consequences for Mr. Reagan and his legacy. It created a record of Mr. Reagan as a former head of state unable to grasp the facts about the most serious crisis of his presidency, in the unforgiving setting of a criminal trial. That imagery seemed to foreshadow his disclosure in 1994 that he had Alzheimer’s disease.

“You just could not have seen all that coming,” Mr. Olson said. “But in a live situation it might have been worse.” Had Mr. Reagan appeared in court, Mr. Olson said, it might have been more difficult for him to interject on his client’s behalf and might not have permitted Mr. Reagan to take the rest breaks he was granted during the deposition.