Libby Trial: Looking forward to appeals and a pardon!

David Corn

The Nation -- Swing and a miss. Swing and a miss. Swing and a miss.

As the I. Lewis "Scooter" Libby perjury trial headed toward a finale, Libby's attorneys on Wednesday made several last-minute stabs to bolster its defense--and federal district Judge Reggie Walton shot each down.

The defense wanted to bring Tim Russert, the Meet the Press star, back to the witness stand. Russert had appeared as a key witness for the prosecution. When Libby, then chief of staff for Vice President Dick Cheney, was questioned in 2003 and 2004 by FBI agents and a grand jury investigating the leak that outed Valerie Wilson as a CIA officer, he claimed that at the time of the leak he possessed no official information about Valerie Wilson and her CIA employment and that he had only heard gossip from Russert about her. In his indictment of Libby, special prosecutor Patrick Fitzgerald claimed this was a lie, and Russert testified that he had told Libby nothing about Valerie Wilson because he knew nothing about her.

So Libby's lawyers were hoping to get another chance to attack Russert's credibility. As a prosecution witness, Russert had testified for twelve minutes before Wells cross-examined him for five hours, nicking but not truly wounding the newsman. That was not good enough for the defense. Libby's lawyers argued to Judge Walton--outside the presence of the jury--that they should be allowed to call Russert back to the stand. The issue at hand was a statement Russert made during his testimony in which he said he didn't realize a grand jury witness is not allowed to have a lawyer present when testifying before a grand jury. Libby's legal team--combing print and video archives--had found NBC News clips from the days of Monica Lewinsky and Whitewater when Russert had informed viewers that a grand jury witness couldn't have a lawyer by his or her side.

Why did a contradiction between Russert's recent testimony and a nine-year-old television clip matter?

Ted Wells, Libby's lead lawyer, argued that because Russert had been allowed to give a deposition to Fitzgerald in a lawyer's office with his own attorney present--rather than appear as grand jury witness with no lawyer to help him--Russert had received a favor from Fitzgerald and might have consequently crafted his testimony to benefit the prosecution. Wells asked to be allowed to call Russert back and play those Clinton-era tapes for the jury.

Walton said no. "It's a totally collateral matter," he declared.

Wells and his crew desired something else from the judge: permission to enter into the record a statement covering the details of the national security matters that Libby was working on at the time of the leak, his two FBI interviews, and his two grand jury appearances. This statement--based on classified information--was drafted before the trial, and the judge and relevant government agencies vetted the document and agreed it could be presented in court so Libby's defense would not reveal classified material. But Fitzgerald argued that the document had been drafted only for use if Libby testified--to allow him to show the jury what was on his mind at these times without disclosing secret information. If he won't testify, the prosecutor maintained, the statement shouldn't be presented to the jury. John Cline, a Libby attorney, argued vigorously. Walton was not persuaded, noting that the statement "was supposed to be a substitution" for Libby's testimony. Without Libby testifying, Walton said, putting the statement into evidence would not be fair.

Next, the Libby lawyers made a bid to introduce as evidence details from intelligence briefings that Libby received about terrorist threats. The point: Libby was so consumed by hair-raising news of threats he could not be expected to care about or remember the minor Valerie Wilson matter. Fitzgerald objected. He argued that the defense was trying to suggest Libby's (overwhelmed) state of mind to the jury without placing their client on the stand and subjecting him to cross-examination. He also maintained that if the details from these briefings were introduced without context--that is, without explaining that Libby received such information on a daily basis--the jurors would not be able to evaluate whether the material was out of the ordinary and truly mind-bending.

Again, Walton sided with Fitzgerald and ruled against Libby. If he doesn't testify, the judge explained, he can't use this information. Instead, Walton allowed Cline to read a stipulation to the jury that repeated information already introduced. This stipulation noted that at a June 14, 2003 intelligence briefing--during which Libby mentioned Joseph and Valerie Wilson to his CIA briefer--he was presented information about a bomb being defused in Yemen, the arrest of a terrorist suspect elsewhere, a possible al Qaeda attack in the United States, Iraq's porous borders, demonstrations in Iran, developments in the Israeli-Palestinian conflict, a possible airport hijacking in England by a group linked to al Qaeda, a variety of potential terrorist attacks around the world, the 1920 Mesopotamia insurrection and its relevancy to the Iraqi insurgency, and other matters. Libby, according to the stipulation, requested additional information on two of the two dozen topics in the briefing.

Shortly after the stipulation was read, Wells told the judge, "The defense on behalf of Lewis Libby rests."

Team Libby concluded its case without offering any witness who was a direct party to the events at issue. It finished its presentation without producing any testimony or evidence to back up its assertion that Libby was the victim of a CIA plot, a State Department plot, a White House plot, an NBC News plot or some combination of these get-Libby conspiracies. It supplied little evidence that Libby was particularly forgetful. It offered no testimony to back up the notion that Libby had no motive to lie to the FBI and the grand jury. During opening arguments, Wells claimed he would show that Libby had no reason to fear for his job when he was questioned by the FBI and the grand jury. Wells said he could show that Cheney would have stuck by Libby no matter what and, thus, Libby had no incentive to cover up his involvement in the leak episode.

Yet Wells put no one on the stand--say, Cheney--to support this claim. And he presented only one witness--New York Times managing editor Jill Abramson--to impeach the credibility of a prosecution witness: Judith Miller, a former Times reporter. Abramson was on and off the stand within minutes. Most of Libby's witnesses testified about events that were not part of the case.
And Libby said nothing. It was as if Wells didn't dare put his client on the stand to repeat the gymnastics he performed during his grand jury appearance when he essentially said, I forgot to remember what I had known but forgotten about Valerie Wilson. And Wells would not give Fitzgerald a crack at Cheney.

Nothing in defense presentation buttressed the dramatic statements Wells made at the start of the case. Libby's lawyers mounted a bombastic but skimpy defense: a lot of hat, not much cattle. This is not unusual in a criminal case. The defense has no obligation to present a case. The burden is upon the government. A defense lawyer can simply claim the prosecution fell short and leave it at that. Which is practically what Wells and his team are doing. As Wells said after resting his case, "There is no box on the verdict sheet [used by jurors] that says...did you tell the full story? It says guilty or not guilty." When the trial began, Wells claimed he and Libby had a story to tell. It turns out they don't.

Closing arguments are scheduled for next Tuesday.

....and the truth shall set us free.