After 11 days of testimony from some high-profile witnesses, prosecutors on Thursday wrapped up their case against former White House official I. Lewis “Scooter” Libby -- and the task now facing the defense appears daunting: convincing jurors that one Washington insider is to be believed when his version of events is at odds with that of so many others.
Libby’s attorneys have succeeded in showing that prosecution witnesses at times suffered memory lapses. But those testifying against Vice President Dick Cheney’s former chief of staff in his perjury and obstruction trial were consistent on two key points: what they did not tell Libby, and what he told them.
Tim Russert, NBC News’ Washington bureau chief and moderator of “Meet the Press,” was the latest to testify that Libby’s description of events is wrong.
Libby told a grand jury in 2004 that he learned of CIA officer Valerie Plame from Russert.
Previous witnesses have testified they learned of Plame from Libby, which defense lawyers deny.
Special Prosecutor Patrick J. Fitzgerald wrapped up his argument in typically matter-of-fact fashion Thursday, telling U.S. District Judge Reggie B. Walton: “At this time the government rests its case.” The defense is set to begin Monday.
Libby’s trial, the first high-profile prosecution of a senior administration official in Washington in more than a decade, has been a legal and political spectacle, providing details of how the Bush administration launched a campaign against Plame’s husband, a critic of the Iraq war.
The case grew out of Libby’s statements to federal investigators about his conversations with three journalists around the time Plame was named in a July 14, 2003, newspaper column by Robert D. Novak. Libby, prosecutors charged, obstructed a federal probe into how Plame’s identity became public. Disclosing the identity of an undercover officer can be a felony.
Russert completed his second day of testimony Thursday with a series of testy exchanges with Libby’s lawyers, who sought to portray him as an unreliable witness with a grudge against the defendant.
At one point, Libby’s lawyers played a tape of an interview with Russert by radio host Don Imus on Oct. 28, 2005, the day Libby’s indictment was announced. Russert sounded giddy as he told how the pending release of legal documents targeting White House officials had the feel of “Christmas Eve” for reporters in Washington.
Theodore Wells Jr., Libby’s lead attorney, suggested Russert was relishing the idea that Cheney’s chief of staff was in serious legal trouble. “Who was Santa Claus?” Wells asked, wondering aloud if Russert saw prosecutor Fitzgerald in that role.
Russert insisted that he was merely describing the atmosphere of anticipation surrounding a case that had been two years in the making. When Fitzgerald asked whether Russert took any joy in Libby’s legal trouble, the newsman turned solemn.
“No, not at all, and I don’t take joy in being here,” Russert said.
Later in the session, the case drew comparisons to the O.J. Simpson murder trial, which was criticized for how long it took to complete.
With jurors out of the room, Wells argued for permission to present more tapes of the “Imus in the Morning” show in which Russert and NBC News reporter Andrea Mitchell discussed the case. Fitzgerald protested that doing so would be tantamount to replacing traditional rules on evidence “with Imus on evidence.”
“Or O.J. on evidence,” Walton said, adding that the Simpson trial had dragged on for nine months largely because attorneys were given extraordinary latitude to pursue tangential arguments and evidence.
Libby has said, through his lawyers and in court papers, that he first heard about Plame in a conversation with Russert a few days after the New York Times published a July 6, 2003, column by her husband, former envoy Joseph C. Wilson IV, criticizing the administration’s use of prewar intelligence.
Russert testified he did not learn her identity until reading Novak’s July 14 column. Two other journalists have testified that Libby told them about Wilson’s wife.
The defense contends that Libby did not knowingly lie, but may not have recollected the conversations accurately because he was swamped with pressing national security matters. A memo from his files introduced into evidence shows that he learned about Plame from Cheney before he talked with the reporters. Libby has said he forgot that too.
Fitzgerald has alleged that Libby concocted the story about Russert after realizing that, by talking with reporters about Plame, he may have committed a felony by disclosing classified information.
In court, Fitzgerald has shown how Cheney’s office mobilized to attack Wilson; the vice president even prepared the talking points. An issue of such importance to Cheney, Fitzgerald has argued, would be hard to forget.
Fitzgerald has “methodically constructed a wall of witnesses who all testified to what a significant issue Plame and her husband were,” said Henry E. Hockeimer Jr., a Philadelphia lawyer and former federal prosecutor. “It’s going to be hard for the jury to believe Libby simply was too busy at the time of his grand jury testimony to remember his conversations.”
The prosecutor also has elicited testimony from former senior government officials that they remember telling Libby about Wilson’s wife well before Libby says he learned about her from Russert.
The defense is expected to attack some of those witnesses in the days ahead. Walton ruled Thursday that Libby’s lawyers could call New York Times Managing Editor Jill Abramson to discredit former Times reporter Judith Miller, who testified against Libby.
Other journalists, including Bob Woodward of the Washington Post, are expected to testify that Libby did not leak them information about Plame.
The defense has indicated that it also plans to call Cheney, presumably to buttress the point about his former aide’s workload, but the timing of his appearance is unclear.
Whether Libby will take the stand in his own defense is unclear. His lawyers previously indicated he was going to testify, but they appear to be rethinking their plans.
“The defendant testifying in any case is your moment of truth for winning or losing,” said Guy Singer, a Washington lawyer and former federal prosecutor. But, he said, Libby may have more to lose than to gain by taking the stand and allowing Fitzgerald -- once described by a colleague as “Eliot Ness with a Harvard law degree” -- to cross-examine him.
“I think that is very, very risky,” Singer said. “He would have to explain his motives.”
Fitzgerald would probably ask Libby, for example, whether it was true that he was engaged in a pitched battle to fight off what Wilson was saying publicly. The question would put Libby in a bind.
“If he admits it, he helps make the government case,” Singer said. “If he denies it, he may appear to be lying.”