Political theater awaited at Libby trial
By his own account, I. Lewis “Scooter” Libby was a very busy man on July 10, 2003.
That day, according to his calendar, he had a senior staff meeting; an intelligence briefing with his boss, Vice President Dick Cheney; a CIA briefing; and lunch with Cheney and then-House Speaker J. Dennis Hastert (R-Ill.).
He was reviewing more than a dozen terrorist threats and checking up on trouble spots around the globe, such as the ouster of Liberian president Charles Taylor and North Korea’s escalating plans for developing nuclear weapons.
Libby also had been busy talking with reporters about a CIA operative who was married to an emerging critic of the Bush administration’s march to war in Iraq. On that day in July, he said he had one such conversation, with Tim Russert of NBC News.
Libby goes on trial in U.S. District Court here today, charged with lying to a grand jury about the conversations he had with Russert and other reporters and, in the process, obstructing a federal investigation.
His defense is a novel one: that he was so preoccupied with life-or-death affairs of state that it affected his ability to accurately recall events for federal investigators.
Prosecutors have a simpler explanation: He lied.
The “faulty memory defense,” as U.S. District Judge Reggie B. Walton has called it, is just one intriguing aspect of what promises to be one of the most remarkable trials in Washington in years.
Expected to last six weeks, the trial is likely to provide a glimpse into how the White House responded to critics of its Iraq war policies. It will also include testimony from Cheney, marking the first time that a vice president has appeared in a criminal trial.
At a time when most high-profile Washington criminal defendants cop pleas to avoid the glare of the courtroom, the case should provide a rare display of political theater, a throwback to the days of Watergate and the Iran-Contra arms-for-hostages scandal, which played out in the same federal courthouse where Libby’s fate will be decided.
The politically charged case against Libby may be the closest thing that critics of the Bush administration ever get to a public trial dealing with the justifications for the Iraq war.
While Walton has made it clear that he intends to keep the case narrowly focused on questions of whether Libby lied, legal experts say it may be difficult for the jury to leave behind their feelings about the war.
Libby helped make the case for invading Iraq. Cheney is one of the most polarizing figures in the administration, even among Republicans. And the 12 jurors who will be selected starting today will be drawn from a city where registered Democrats outnumber Republicans 10 to 1.
“In most cases, politics are irrelevant. But this case is political,” said Carolyn Koch, a Fairfax, Va., jury consultant. “People are so inflamed about the war in Iraq, and here they have a target in front of them. It is an opportunity to vent some anger.
“If I were Scooter Libby, I would be concerned. That does not mean you are guaranteed to be convicted. But it means you have an uphill battle.”
The trial is the culmination of a three-year investigation that began with a July 14, 2003, article by syndicated columnist Robert Novak.
Novak took on former envoy Joseph C. Wilson IV, who had just written an op-ed piece in the New York Times that cast doubt over Bush’s assertion in his 2003 State of the Union address that Saddam Hussein was seeking to acquire weapons-grade uranium from Niger. The CIA had sent Wilson to Niger in February 2002 to evaluate reports of sales of nuclear material. Novak suggested in his column that the trip was based on nepotism. Citing administration sources, he wrote that Wilson’s wife, Valerie Plame, worked at the CIA on weapons of mass destruction issues.
In December 2003, the Justice Department appointed U.S. Atty. Patrick J. Fitzgerald in Chicago as special counsel to investigate whether laws making it a crime to divulge the status of a covert operative were broken.
Fitzgerald turned up evidence that the White House was greatly concerned about Wilson, to the point that Bush declassified a national intelligence document to rebut claims the former envoy was making about Africa. The prosecutor also obtained evidence that other officials, including White House political director Karl Rove, had discussed Plame with journalists before her name was published.
But Fitzgerald never charged anyone with breaking the law that protects covert agents. And he continued to investigate even after learning early on who had leaked Plame’s identity to Novak. That person, former Deputy Secretary of State Richard L. Armitage, was not charged. Fitzgerald has not said why, although it could be because the law can be used only against someone who knowingly discloses the name of a covert agent whose identity officials are actively trying to protect.
Libby was indicted in October 2005 on charges that he lied under oath about conversations with three reporters about Plame. In testimony, he had acknowledged talking with the reporters about Plame, but said he was passing along tips he had heard from other reporters, including Russert.
But Russert has testified that he was not the source, and the other journalists have said it was Libby who told them about Plame. And Fitzgerald turned up evidence that Libby was assiduously gathering information about Wilson and Plame and learned her identity through a number of sources, including Cheney.
Fitzgerald has said that Libby’s testimony set the investigation back months.
The government is expected to call the reporters, then-Time magazine White House correspondent Matthew Cooper, former New York Times reporter Judith Miller, and Russert. Others expected to testify for the prosecution include former White House Press Secretary Ari Fleischer, who, according to court documents, had a conversation over lunch where Libby told him about Plame but stressed that the information was “on the q.t.”
Libby, who is represented by three major law firms and backed by a legal defense fund that has raised millions, is expected to call other journalists with whom he spoke during that period to show that he did not disclose information about Plame to them or that her identity had become widely known.
He is also expected to challenge the testimony of Cooper and Miller. Each had initially resisted cooperating with Fitzgerald in talking about conversations they had with Libby because they considered him a confidential source they wanted to protect. Miller spent 85 days in jail for contempt before cooperating.
But mainly, Libby is betting on what one lawyer calls his “busy man defense.” Walton has said that Libby plans to use “a dizzying panoply” of information to make the point, including CIA-scrubbed summaries of classified information.
“The defendant anticipates using ‘dots’ on a PowerPoint presentation to show that during the time period critical to the indictment he was presented with several hundred other pieces of classified information,” the judge said in an order last month. The defense is unusual because Libby is in essence admitting that he may not have told the truth, which lawyers said is a risky gambit in perjury cases, where defendants usually argue that what they said was technically true or that they were confused by the questions posed to them.
They said they could not recall another case where it had been tried in court, although it has been tried in the court of public opinion. In the 1980s, President Reagan denied trading weapons for hostages in the Iran-Contra affair, but later recanted when confronted with evidence that he did, citing a memory lapse.
Some experts said Libby runs the risk of appearing to believe he’s above the law.
“A D.C. jury is quite likely to have its share of people with lower-level government jobs who don’t take kindly to self-important claims that the press of business makes it unnecessary to focus on precisely what one says to government investigators and in the grand jury,” said Daniel Richman, a former federal prosecutor who teaches criminal law at Fordham Law School.
But others said they could sympathize with Libby’s claim.
“I think that people who have been around government will regard this ... as not being a frivolous defense,” said Stephen Saltzburg, a George Washington University law professor and former Justice Department official. “I can remember myself, there were days in the Justice Department you would be dealing with a different issue every 15 minutes. If someone asked me a week later ... who I talked to a week earlier ... I could easily have been wrong just because there was so much going on.”
Jeffrey Frederick, a Charlottesville, Va., jury consultant, said the test for Fitzgerald would be showing that the conversations with journalists dealt with a subject that was so important that a reasonable person would have remembered it. That could be tough for Libby to overcome because the subject matter was the war and Wilson -- whom the White House clearly had concerns about.
“We are not talking about whether you had tuna or sirloin on a Friday night,” Frederick said.