Fleischer was a devastating witness, since Libby could not have told him about Plame on July 7 if he heard it for the first time from Tim Russert three or four days later. Fleischer demolished Libby’s alibi. The defense tried to establish an alternative scenario: that Fleischer could have heard about Plame from someone on Air Force One (specifically, Dan Bartlett) and not from Libby. That Fleischer then leaked Plame’s identity to other reporters, including NBC’s David Gregory, who could have told Russert. But Fleischer gave no evidence that anything like this had happened. Wells and Jeffress stressed his immunity deal and the fact that he had leaked Plame’s identity to undermine his character. But neither had any direct bearing on his credibility about his lunch with Libby.
On the afternoon of January 30, jurors were finally introduced to Judith Miller, whose notoriety had by now eclipsed Libby’s. Miller was no longer a
Times
reporter; her article describing her grand jury testimony turned out to be her last. Shortly after, the
Times
negotiated a severance package and she resigned. Her decision to testify was the last straw for many in the
Times
newsroom who were already skeptical of her reporting on Iraq. As Miller herself put it in a letter the
Times
published:
Mainly I have chosen to resign because over the last few months, I have become the news, something a
New York Times
reporter never wants to be. Even before I went to jail, I had become a lightning rod for public fury over the intelligence failures that helped lead our country to war.
Wearing a black velvet jacket and fighting a cold, Miller gave a straightforward, detailed account of her three pivotal interviews with Libby–on June 23, July 8, and July 12. She recalled that Libby had told her about Valerie Wilson and her CIA status on the twenty-third, and again on July 8, with both instances reflected in her notes. Her memory was vague about the July 12 phone call, but she thought she told Libby that she wasn’t going to do a story on Plame.
Miller also gave a matter-of-fact account of her initial refusal to testify: “I told [Judge Hogan] I could not do so, because I did not have a waiver from my source that I believed was voluntary and personal. So I could not comply.” And she acknowledged that she’d forgotten the June 23 meeting until she discovered her notes.
The defense made much of this, suggesting this was the type of common memory lapse Libby might also have experienced. But otherwise, Wells and Jeffress made little headway on cross-examination. Indeed, it’s hard to believe that Libby ever wanted her to testify, since she was a doubly damaging witness. Not only had Libby leaked Plame’s identity to her in at least two interviews, but the first of these came weeks before the Russert conversation.
“One of the jurors wants to know,” Judge Walton interjected, “why did you make the decision to go to jail?”
“Because everything that I do and have done in Washington–all of my reporting depended on people coming to me and being able to trust . . . that I would protect them. And it wasn’t until I was absolutely certain that I had a voluntary and personal waiver–written waiver from Mr. Libby–not something his boss had asked him to sign, but something that he had given me and I was able to talk to him about, and knowing that I could protect the other sources–I really felt that, as a professional and ethical matter, I had no choice. It was all my conscience would allow. I wasn’t trying to be a martyr or make a stand. I was just trying to do the right thing vis-à-vis my sources, knowing that without that kind of trust, you can’t operate in Washington when people can go to jail for even talking to you.”
Miller was dismissed, and Matt Cooper took the stand. Cooper testified that he’d first learned about Plame’s identity from Karl Rove, and that when he asked Libby about it, he said, “Yes, I have heard that too,” or “Yes, I have heard something like that too,” which Cooper took as confirmation.
“And did Mr. Libby indicate to you how he had–who he had heard the information from?”
“Not in any way, no.”
“And did he at any time indicate that he had heard the information from reporters?”
“No.”
The defense stressed that none of this was in Cooper’s notes, nor was it in his memo to his editors at
Time
. Jeffress, in particular, zeroed in on a cryptic reference in his notes to “had something and the Wilson thing and not sure if it’s ever.” Cooper conceded he wasn’t sure what the notes referred to. “I cannot account for that sentence we’ve been talking about. I do have a distinct memory of when we talked about the wife and what he said.”
“Had Mr. Libby given you information confirming [that Plame worked for the CIA], that would be something you’d want your editors to know, wouldn’t it?”
“I would think so.”
“And isn’t the fact that . . . everything that you’ve described that Mr. Libby said to you that day is in this memorandum except anything about Wilson’s wife?”
“Yeah, the Wilson’s wife thing is certainly not in the memorandum. I don’t know if there is anything else.”
“That is consistent, Mr. Cooper, with the fact that whatever Mr. Libby said to you in that conversation was not confirmation of anything, isn’t it?”
“What I remember, Mr. Jeffress, distinctly over these three and a half years . . .”
“Are you answering my question or some other question?”
Fitzgerald quickly objected, but Jeffress had scored a point in what Wells later characterized, no doubt with some hyperbole, as the trial’s “Perry Mason moment.”
Cooper was dismissed; it seemed ironic that his and Miller’s testimony, which had occupied thousands of hours of legal argument, multiple court filings, millions in legal fees, and caused a furor in the media, had amounted to just several hours.
To establish exactly what Libby had told investigators, FBI agent Deborah Bond testified extensively about the FBI’s interviews with Libby on October 14–when Libby first told the Russert story and produced his notes from the earlier Cheney conversation–and November 26. Next Fitzgerald played the full audiotape of Libby’s grand jury testimony–a rare public glimpse into the grand jury process. It was obvious that Fitzgerald was skeptical of the Russert story during the questioning; yet Libby never wavered. If anything, his recollection became more detailed and certain.
Libby’s grand jury performance set the stage for Fitzgerald’s star witness: Tim Russert. The courtroom, which had thinned out during the playing of the Libby tapes, was packed. Everyone following the trial knew it would ultimately turn on Russert’s testimony: the “he said/he said” dimension that had figured so prominently in Wells’s opening statement. Russert was not only a celebrity in his own right but also one of the country’s most trusted and popular journalists. He wore a navy suit and light blue tie and was on crutches from a recent broken ankle.
Russert’s testimony was also critical for what he and Libby didn’t say. He testified that Libby called to complain about Chris Matthews; he’d handled it as a routine “viewer complaint” and suggested other people at NBC for Libby to call.
Fitzgerald asked, “During this phone conversation did you at any time . . . discuss with Mr. Libby the wife of Ambassador Joseph Wilson, whether referred to as the wife of Ambassador Wilson or by the name Valerie Wilson or Valerie Plame?”
“No, that would be impossible because I didn’t know who that person was until several days later.”
“And did you tell Mr. Libby that Wilson’s wife worked at the CIA during that phone call?”
“No.”
“Did you ever tell Mr. Libby that all the reporters were saying that Wilson’s wife worked at the CIA?”
“No, I wouldn’t do that. I didn’t know that.”
Russert’s direct examination lasted fifteen minutes. He testified with clarity and seeming certainty: not just that he didn’t discuss Wilson’s wife, but that he couldn’t have. Could the defense shake this conviction?
Wells and Jeffress made an exhaustive effort to do so. In many hours of cross-examination they tried to establish that Russert could have heard about Wilson’s wife from other NBC reporters, that he didn’t like Libby and had been gleeful over his indictment, that he had concealed his initial willingness to answer the FBI’s questions, and that his own memory was spotty: he didn’t even remember appearing on the
Today s
how to discuss the case:
“Do you remember saying to Ms. Couric, ‘It’s huge, Katie. This is the first time in 130 years, as we mentioned the other day, that a sitting White House official would come under indictment’? . . . Does that refresh your recollection that it occurred?”
“No. I don’t question I said it. But I just don’t remember it.”
“Do you have a bad memory?”
“No, sir.”
“Are you able to remember some things better than others?”
“Yes, sir.”
By the end of his cross-examination, Russert remained unshaken. Fitzgerald’s redirect examination was very brief:
“Did you take any joy in Mr. Libby’s indictment?”
“No, not at all. And I don’t take any joy in being here.”
F
itzgerald rested the government’s case, with the defense set to begin the following Monday. Vice President Cheney was scheduled to testify on Thursday, followed by Libby himself.
The defense team launched its case with a barrage of reporters. On February 12, jurors heard from five journalists in a single day. Three were from the
Washington Post
: Walter Pincus, Glenn Kessler, and Bob Woodward. Fitzgerald had previously interviewed all three without the
Post
raising any firestorm over the First Amendment. The others were David Sanger of the
Times
and Robert Novak. They all made the same point: they had spoken with Libby during the relevant time period and he had not talked about Wilson’s wife. Pincus, however, said he had learned Plame’s identity from Ari Fleischer on July 12, though Pincus wasn’t one of the journalists with whom Fleischer recalled discussing the subject. Libby himself had told the grand jury he thought he’d discussed Plame with Kessler; Kessler said he had not. The collective testimony suggested that Libby was not on any systematic campaign to “out” Wilson’s wife; he had ample opportunity to spread her identity among other reporters but hadn’t.
Novak, the source of the entire controversy, finally got his day in court, testifying that his sources for the column that set the Plame affair in motion were indeed Armitage and Rove–old news that by now seemed anticlimactic. It seemed ironic that the reporter who had set Libby’s prosecution in motion was now a witness for the defense. Novak said he was “absolutely confident” that Libby gave him no help on the Valerie Plame story; he wasn’t even sure he had raised the matter with him. In this sense, Libby had always been correct: he was not a source for the Novak column.
Next the defense called John Hannah, who had been Libby’s deputy for national security affairs, to establish that Libby was exceptionally busy and had a bad memory. He said that Libby essentially held two full-time jobs.
“Did you have an opportunity to observe how well he remembered things?”
“I did. I had experience with that.”
“And what did you observe?”
“On certain things, Scooter had just an awful memory.”
“Can you give us an example from your experience?”
“Times too many to count, I would come in to Scooter in the morning, and we would discuss an issue. I would give my views on it, give a policy recommendation, give an analysis, and show up six, seven hours later that evening, and have Scooter in a very excited fashion repeat back to me the analysis, the recommendations, and have no idea that I had actually told him that the very same morning. It was very striking.”
Judge Walton pursued this theme with a few questions of his own:
“When Mr. Libby had memory lapses, what was said or done by you to trigger Mr. Libby’s recall of the issues previously discussed but seemingly forgotten?”
“Again, it would often be the case that he was quite good at remembering ideas and concepts and arguments, and very bad at sort of figuring out where those arguments might have come from and how they might have come to him. So I think I would simply say, ‘Yes, that’s a great idea because I told you this morning.’”
“Would Mr. Libby deny, acknowledge, or debate that you had informed him of these particular matters earlier?”
“Never.”
“Based upon your observations, were there things that Mr. Libby had a good memory about?”
“Again, it’s hard. This kind of thing that I just described was a fairly regular pattern with Scooter, but he was certainly good at remembering his own arguments and key points–key factual points that he would want to be able to make in any kind of policy argument. He was very good at keeping those types of things in his head and keeping his arguments organized.”
When the jurors returned from lunch, Ted Wells informed the court that the defense had released the vice president as a potential witness and that he had advised Libby himself not to take the stand. Judge Walton turned to Libby: “I’m sure you understand, based upon your discussions with your lawyers and the fact that you are a lawyer yourself, that you fully appreciate that, under the United States Constitution, you have the absolute right to testify in your defense.”