Fitzgerald turned to the campaign to rebut Wilson’s allegations: lunch with Ari Fleischer on July 7, the meeting with Judy Miller on July 8, the call to Russert on July 10 to complain about Chris Matthews, the Tenet statement on July 11, the trip to Norfolk and subsequent calls to Cooper and other reporters on July 12. And finally Fitzgerald mentioned the Novak column, only to dismiss it. “One thing should be very clear. Mr. Novak relied on two sources. Neither of those sources is the defendant.”
“Let’s move forward to the fall of 2003.” Fitzgerald pointed out that this was when the furor shifted to who had “outed” a CIA agent, and a Justice Department investigation began. The new White House press secretary was deluged with questions about who was responsible. (“He should have brought a helmet to work,” Fitzgerald opined.) Though he had cleared Rove of suspicion, he refused to go further and exonerate Libby. “As you can imagine, the defendant was not happy,” Fitzgerald continued, and lobbied the vice president to intervene on his behalf. Cheney did, and McClellan cleared Libby on October 7. “But the evidence will show the defendant had a problem. He was involved in leaking information about Wilson’s wife to reporters. He had talked to Judith Miller about it on June 23, 2003; July 8, 2003; and July 12, 2003. He confirmed it to Matt Cooper in that phone conversation from the air force base. And he also told it to the White House press secretary whose job it was to talk to the press.”
In Fitzgerald’s telling, this set the stage for Libby’s lies, first to the FBI, and then, under oath, to the grand jury. “The White House had insisted that no one in the White House was involved, and anyone involved would be fired. And at the defendant’s insistence the White House had told the world he had nothing to do with this. You will learn that, during that FBI interview, the defendant lied. He made up a story . . . his story was essentially this: I am learning from Tim Russert this information, and as I’m learning it, I’m saying, I don’t know this. And then, as he takes the information and passes it on to the other reporters, he says, ‘I am just giving you rumors from another reporter. I don’t know if it’s true.’ The note found in his files showing that the vice president had already told him about Wilson’s wife inconveniently undermined this story, so Libby simply said that he’d forgotten all that. He was learning the information all over again, as if it were new, from Tim Russert.
“Well what about Tim Russert? Tim Russert will walk into the courtroom during this trial, take that witness stand, swear to an oath and testify. Tim Russert will tell you that he did not tell the defendant on July 10, 2003, that Wilson’s wife worked for the CIA.”
Fitzgerald played several sections of the audiotape of Libby in the grand jury describing the Russert conversation and his interviews with Miller and Cooper.
“Members of the jury, the evidence you will see in this case from the witness stand will show you that the defendant knowingly and intentionally lied to the FBI and lied after taking an oath before the grand jury. This is not a case about bad memory. . . . Having a bad memory is not a crime. The defendant is not charged with having a bad memory. . . . The defendant knowingly and intentionally lied by trying to shift the information he gave to reporters away from where he really learned it and to blame it on a conversation with Tim Russert that never happened.
“Something important needed to be investigated: Whether the laws protecting covert agents and classified information have been broken. And to do that on behalf of the citizens, the FBI and the grand jury needed the truth. What the evidence will show is that the defendant obstructed that search for truth. The defendant lied to the FBI, and he stole the truth from the grand jury.
“Thank you.”
Ted Wells stepped forward to deliver Libby’s opening statement. “Scooter Libby is innocent. He is totally innocent. . . . He has been wrongly and unjustly and unfairly accused.”
Wells moved swiftly to what the defense team considered the weakest element of the government’s case: motive. Motive is rarely an element of a crime that must be proved, but without a plausible motive, few juries are convinced. Without being explicit, Fitzgerald had planted a notion of Libby’s motive: once he’d lied to get his name cleared, he’d had no choice but to lose his job and face public humiliation, not to mention possible prosecution for leaking Plame’s identity. Wells tried to counter this: “People do not lie for the heck of it. When somebody tells an intentional lie, it’s because they have done something wrong. They are trying to cover something up. And what you will learn from the evidence is Scooter Libby had nothing to cover up. He was an innocent person, and there was no reason to lie.”
Wells also did his best to distance Libby from other, far less popular figures in the White House, saying that “some people” in the White House–he later mentioned Karl Rove by name–may have “pushed” reporters to write about Wilson’s wife, but not Libby. Libby was concerned about being “set up. He was concerned about being the scapegoat for this entire Valerie Wilson controversy.”
Wells made clear that the essence of Libby’s defense would be a weak memory. He argued that he would show that Libby’s recollections of his conversations with Russert and other journalists were accurate, and the reporters were wrong. But even if Libby had been mistaken in his testimony, he had never lied. As Fitzgerald had conceded, a bad memory is not a crime. “I am here to defend Scooter Libby for three telephone calls. And as interesting as it is to be in a case with the backdrop of the war and to have all these people here, ultimately, what you are all going to have to focus on and decide is a very narrow question having nothing to do with the war, but about three phone calls, three reporters, what somebody recollected three months later, and what some other people recollected three months later where there are no notes, no recordings. He said/she said. . . .”
Returning to the issue of motive, Wells asked why Libby would make up a story about Tim Russert when it wasn’t a confidential conversation and he knew investigators would ask Russert about it. Wells’s answer: “It didn’t happen. Mr. Libby was a very busy man, but he wasn’t stupid. Nobody’s going to tell you he was a nut. It makes no sense.”
This was a variation on the Martha Stewart defense argument: that the defendant was too smart to have done something so stupid as to tell a lie that could be so easily exposed. Why Libby told the Russert story was a question Libby himself might address if he testified–Wells had listed him as a potential witness, but hadn’t yet said if he would take the stand.
Returning to the theme, Wells argued again that it made no sense for Libby to fabricate the Russert story. “That theory is both flawed and illogical.” Libby had heard on July 11 from Rove that Novak was writing a story about Wilson’s wife, so if he wanted to say he was hearing this from reporters, “all he would have to say is . . . ‘I’ve heard that from Robert Novak’ or ‘I’ve heard a reporter has already written a story.’ No need to make up any fake, phony story about Tim Russert. Mr. Libby told the truth as he recollected it. The entire premise, the theory of the prosecution’s case that he had to make up Tim Russert, to put some reporter in between him and Miller and Cooper, it’s just stupid, stupid.”
Wells told jurors, “During this trial you will learn how the vice president of the United States ordered him to stick his neck in the meat grinder. But being in the meat grinder did not mean saying anything about Valerie Wilson.
“I want to conclude by saying what I said earlier. You promised you would be fair. Any feelings about the war in Iraq you would put to the side. You promised. The only way I lose this case is if somebody starts to interpret the evidence based on your feelings about the war. They have no evidence. They have no case. He is innocent and, at the end of this trial, I will ask you to return a verdict of not guilty on each and every count. Thank you.”
Both prosecution and defense had pointed out that Libby was not accused of leaking Valerie Wilson’s identity. And yet in both presentations it had emerged as a central issue. Crime or not, leaking the identity of a CIA agent could hardly be construed as a patriotic or heroic act. And if Libby had leaked–something for which the president had said he would be fired–he had a motive to lie and obstruct the investigation. Thus Wells went to some lengths to establish that Libby didn’t know Valerie Wilson’s status at the CIA and that he wasn’t Novak’s source–facts that Fitzgerald didn’t dispute. But while arguing that Libby “didn’t do anything,” Wells never said flatly that Libby hadn’t leaked Valerie Wilson’s identity to other reporters.
Given the broad scope and complexity of the investigation, focusing as it did as much on Armitage and Rove as Libby, the prosecution’s case was surprisingly concise. Fitzgerald didn’t call Novak, Rove, or Cheney as witnesses. His goal was simply to prove that Libby had lied about the source of his knowledge about Valerie Wilson: it was Cheney, followed by other government officials and not hearsay from Russert. And he had lied about his conversations with Miller and Cooper. Fitzgerald orchestrated his case by calling a series of administration officials, then journalists Miller and Cooper. All would build to the prosecution’s star witness: Tim Russert.
The sequence began with the State Department’s Robert Grossman, followed by the CIA’s Robert Grenier and Libby’s briefer, Craig Schmall. All gave straightforward accounts of Libby’s efforts to learn more about the Wilson mission in June 2003, after the Kristof article appeared. Grossman testified that he’d commissioned the INR report that described Wilson’s wife, and briefed Libby on it: “I recall that I said there was one other thing I thought he needed to know, which was that Mrs. Wilson, or Joe Wilson’s wife, worked at the agency. . . . I felt it was my responsibility to make sure that he had the whole context. I didn’t think it was right to not tell him the whole story.”
The CIA’s Grenier also described telling Libby about Wilson’s wife, recalling that he was pulled out of a meeting and handed a note telling him to call Libby. It stuck in his mind, because “I don’t think I had ever been called out of a meeting with the director either before or since.” He said he’d called Libby right away, and “I mentioned it only in passing. I believe I said something to the effect that–in fact, Ambassador Wilson’s wife works there, and that’s why–that’s where the idea came from.” Grenier hadn’t initially told the FBI this, and said he only remembered it later, after reading in the press that Libby said he’d learned about Wilson’s wife from reporters. Grenier said he remembered feeling guilty about having told Libby, since “it wasn’t absolutely necessary for me to have said that, and that is information that we normally guard pretty closely.” He’d called the FBI to expand on his earlier testimony.
Schmall testified that Libby had asked him about Wilson and his wife, and, unlike the other witnesses, he had notes on his briefing materials, dated June 14, 2003: “Why was the [ex-ambassador] told this was a V.P. office question, Joe Wilson, Valerie Wilson.” He also recalled later discussing the leak of Valerie Wilson’s identity with the vice president and Libby at the Naval Observatory, the official vice presidential residence. “People were saying that, well, this is really no big deal. There is no danger involved here. I thought there was a very grave danger to leaking the name of a CIA officer.”
And then came Cathie Martin, the witness who worked most closely with Libby. She described walking in on Libby and the vice president to report on her conversation with the CIA’s Bill Harlow. “He told me the former ambassador’s name, his name is Joe Wilson. And apparently he was a chargé [d’affaires] in Baghdad, and apparently his wife works at the CIA.” She didn’t recall the date, but thought it likely it was June 11. She also described listening to Libby’s end of the phone conversation with Matt Cooper. She didn’t hear Libby say anything about Wilson’s wife, nor did he say anything about other reporters. She did acknowledge on cross-examination that she took another call at one point, and so might have missed some of Libby’s conversation with Cooper.
Four witnesses had successively established that they told Libby about Wilson’s wife well before he had the conversation with Russert. The fifth was the vice president, according to Libby himself and his notes of the conversation. Cheney himself had claimed to have no memory of this, so there was no point in calling him as a witness. This put the defense lawyers in a difficult position. Their first line of defense had always been that Libby’s version of these encounters was correct, and that there had been no discussion of Wilson’s wife, and virtually no talk of Wilson and his mission. Could all four witnesses be mistaken? The fallback position was that if Libby was wrong, it was an innocent mistake and something he’d simply forgotten. But given Libby’s preoccupation with the Wilson story, even pulling Grenier out of a meeting with Tenet, was this plausible?
As the person closest to Libby, Martin might have been the ideal witness to convey how busy Libby was, how preoccupied with more important events, and how bad his memory was on a host of topics and not only the subject of Wilson’s wife. Martin did say that Libby was “busy . . . he was always busy. But I don’t know what–I never knew precisely what he was doing. . . . He spent a good deal of time with the vice president.” But that was it–she wasn’t asked, nor did she offer, a single example of a Libby memory lapse. Nor did she offer any praise of Libby, leaving the impression, fairly or not, that she didn’t hold him in especially high regard.
The highest-ranking administration witness was Ari Fleischer, the only witness to testify under grant of immunity. As the former press secretary, someone close to the president, he was able to place the Wilson controversy in the broader context of the war, the State of the Union address, and the Bush administration’s credibility problem. The heart of his testimony, however, was the crucial July 7 lunch.