“Yes, sir, I do.”
“Understanding that right, is it your decision, after consultation with counsel, to not testify in this trial?”
“Yes, sir. I thank you for the concern. I will follow the advice of my counsel.”
D
espite eager anticipation, the defense case had taken less than two days of testimony. That neither Cheney nor Rove was called as a witness disappointed those hoping for what would have been an unprecedented examination of two of the most powerful and secretive members of the Bush White House. Their absence was especially glaring, since both were in a position to corroborate Libby’s testimony that he told each of them at the time that he learned Plame’s identity from Tim Russert. Indeed, had either confirmed that account, it would likely at least have raised a reasonable doubt about Russert’s claim that no such conversation took place. As it was, no one other than Libby himself (before the grand jury, not at trial) had testified that such a conversation had taken place.
Peter Zeidenberg, one of Fitzgerald’s deputies, delivered the closing argument for the government, and made the point succinctly that Libby “does claim that he forgot nine separate conversations with eight individuals over a four-week period about Joseph Wilson’s wife. But he also invents out of whole cloth–absolutely fabricates–two conversations that never happened, his conversation with Matt Cooper and his conversation with Tim Russert. That, ladies and gentlemen, is not a matter of forgetting or misremembering. It’s lying.”
Zeidenberg pointed out that Libby discussed his pivotal conversation with Russert more than two dozen times during his grand jury testimony “and his testimony was not that he thought he probably or likely learned the information about Wilson’s wife from Tim Russert, or he was pretty sure he learned it from Russert. He was unequivocal. He was certain. He remembers being struck by the news. He remembers what he was thinking when he was told this information by Tim Russert. . . . Mr. Russert has a clear memory of that conversation. Mr. Russert never talked to Mr. Libby about Wilson’s wife. He never said ‘All the reporters know about Wilson’s wife.’ It never happened. Mr. Russert didn’t know about Wilson’s wife. He read about Joseph Wilson’s wife in the newspapers. That conversation never happened.”
Despite Libby’s allegedly weak memory, Zeidenberg noted that he had an excellent memory of many details, such as the conversation in which Rove told him about Novak. He accurately remembered many details of his conversations with Judith Miller. He remembered discussing the Miami Dolphins with Ari Fleischer. But what did he forget? “You will find, ladies and gentlemen, that there is a pattern of always forgetting the piece about Wilson’s wife.”
Zeidenberg concluded by focusing on motive. Libby had signed a statement agreeing not to disclose classified information. He knew that he would be fired “at a minimum . . . and think about the political damage.” Moreover, Libby had gone to the vice president and asked him to get the White House to issue a public statement exonerating him. And he did get such a statement. The president and vice president had now put their credibility on the line for him.
“And now the FBI comes knocking. . . . Now he has a choice to make. He can tell the truth and take his chances with the investigation or he can lie. And ladies and gentlemen, he took the second choice. He decided to lie, and he made up a story he thought would cover him.
“When you consider all the evidence, we suggest the government has met its burden of proof and has established the defendant lied under oath to the grand jury and committed perjury. He made false statements to the FBI and he obstructed justice. We ask you to convict Mr. Libby on each count in the indictment.”
T
he defense lawyers had the daunting task of raising doubts about all of the government’s witnesses: five government officials who said they discussed Wilson’s wife with Libby before Libby spoke to Russert, three–Fleischer, Miller, and Cooper–who said Libby told them about Wilson’s wife, and one–Russert–who said he hadn’t told Libby about Wilson’s wife.
Russert understandably received much of Wells’s and Jeffress’s attention, since if the jury believed Russert, then Libby was guilty. Wells read a portion of Eckenrode’s notes of his initial interview with Russert: “Russert does not recall stating to Libby in this conversation anything about the wife of former ambassador Joe Wilson, although he could not completely rule out the possibility that he had such an exchange.”
Wells continued, “The statement that he could not rule it out is totally contrary from what he told you on the witness stand. And with respect to the counts involving Tim Russert, those counts rely almost exclusively on Tim Russert’s testimony. He is a one-man show. There is no corroboration. It’s what I mean when I say he said/she said. It’s what Russert said he recalls and what Libby says he recalls. That’s it.”
Though not strictly relevant to the charges, Wells stressed what even the prosecutors had acknowledged was a weakness in the case, which was that Libby was not a source for the Novak article. He shrewdly shifted the emphasis to the real leakers–Armitage, Rove, Fleischer–none of them on trial.
It was up to Jeffress to discredit Miller, who’d said Libby had told her about Plame at least twice. And she had notes. “So here’s Ms. Miller, who has a total lack of memory of any meeting on June twenty-third. She accidentally finds some notes, and all of a sudden she can tell you that Mr. Libby was agitated and about his demeanor and exactly what he said, and a perverted war of leaks and so forth and so on. It’s pretty amazing, pretty amazing for somebody testifying about a conversation of which they had no memory for two years. . . . She’s reconstructing by coming in here and testifying as if she has a clear memory of this meeting that occurred three and a half years ago. It’s just not so.”
Given her bad memory, she might also have been wrong about the July 8 conversation. Jeffress stressed that Miller talked to other sources about Wilson’s wife–“She either can’t or won’t tell you the name of a single other source”–and that these sources, not Libby, might have been responsible for the entries in her notes. After all, she testified that the name “Valerie Flame” didn’t come from Libby. “In a case that requires proof beyond a reasonable doubt, Judith Miller is not a reliable witness.”
Jeffress also argued that making mistakes, even under oath, is not the same as lying. “It’s not fair to flashback Mr. Libby’s grand jury testimony. I mean, I know he said, ‘Look, I think I told Matt Cooper that I didn’t even know Wilson had a wife.’ Well, you know, number one, it’s obviously not so. Mr. Libby couldn’t have been trying to hide anything. He already admitted that he heard from Karl Rove the day before about Mr. Wilson’s wife. He admitted that he heard from Mr. Russert two days before or one day before about Mr. Wilson’s wife. He’s not trying to hide anything. . . . It wouldn’t be fair to go down and pick some little statement that he made in the grand jury and say, Well, that’s not true. You know he must have meant to lie.”
Wells returned for the final summation, focusing on the weakness of circumstantial evidence and the memory defense. “There is no evidence that Libby was engaged in intentional lying as opposed to he just forgot like all of us forget things. All of us forget things. We misconstrue things. We misrecollect things. It happens to everyone. . . .”
Wells continued that “when all of this was going on in June and July, there [were] some of the most high stress moments in the history of the United States of America. This country, not only were we at war, not only did we have 100,000 kids on the ground in harm’s way, but they hadn’t found any weapons of mass destruction. The country was starting to turn against the Bush administration. The country was saying, hey, you lied to the American public. You lied in the State of the Union . . . we started off talking about Karl Rove and sacrificing Scooter Libby. That’s written in the vice president’s own handwriting. I say to you, Don’t sacrifice Scooter Libby for how you may feel about the war in Iraq or how you may feel about the Bush administration. Don’t sacrifice Scooter Libby.
“This is a man with a wife, with two children, and nobody has come in here and said, He’s been a bad person, done anything wrong. He’s a good person.” At this juncture Wells was so emotional that he was fighting tears, and had difficulty continuing. “He has been under my protection for the last month. I give him to you. I ask you at the end of the case, vote not guilty on each and every count and give him back to me. Just give him back.” As Wells sat down, he was sobbing.
F
itzgerald had the final word, and he used the opportunity to suggest that Libby’s lies had prevented him–and the American people–from ever learning the whole truth about how and why Valerie Plame was outed, at whose behest, and whether it was part of a broader campaign to discredit an administration critic. “There is talk about a cloud over the vice president. There is a cloud over the White House as to what happened. Don’t you think the FBI, the grand Jury, the American people are entitled to a straight answer?” . . . Libby “threw sand in the eyes of the grand jury and the FBI investigators. He obstructed justice. He stole the truth from the judicial system. When you return to that jury room, you deliberate, your verdict can give truth back. Please do.”
As the jurors deliberated, it was clear that many of the defense arguments had struck home. They agreed that Libby was a fall guy for others, and wondered why Rove and others weren’t charged. They thought Libby was polite and personable in his grand jury testimony and felt uncomfortable judging him. They accepted that he did have a weak memory for some things. They compiled a long list of “reasons to lie” and “reasons to tell the truth.” But as they categorized the testimony on Post-it notes, the “arithmetic,” as one juror later described it, seemed compelling: eight witnesses had described nine conversations in which Libby discussed Wilson’s wife before he claimed to have heard it “as if for the first time” from Russert. “There was no wiggle room about it, unless you think all these people who work for the administration were lying,” said Denis Collins, the juror who was the former
Washington Post
reporter. “One of the jurors said, ‘If I am told something once, I am likely to forget it. But if I am told it many times, it is much less likely I will forget it. And if I tell it to someone else, that is even more unlikely.’ ”
The jurors carefully weighed the credibility of each witness and the motives each might have had to lie or misremember. When it came to Russert, the most important witness, they found him credible. He had no motive to lie; moreover, he didn’t even know about Wilson’s wife. The defense had never shaken him on that point or produced any evidence to the contrary. They also found Ari Fleischer credible. His admission that he leaked to reporters wasn’t in his self-interest, and his immunity grant didn’t protect him if he lied. They also believed Judith Miller, although some jurors found her “confused” and “stressed out,” understandably, after eighty-five days in jail. Several jurors said they felt sorry for Miller, who looked thin and chilled on the stand, and felt the defense lawyers had been unfairly hard in attacking her credibility.
The jurors took five full days to deliberate. They weren’t swayed by any aversion to the Iraq War or distaste for Bush or Cheney. Nor were they affected by Wells’s emotional appeal or the fact that Libby hadn’t leaked to Novak. Collins said that everything kept coming down “to one or two statements” and the fact that some of the most damaging testimony came from those closest to Libby–Cathie Martin and John Hannah.
The jurors took their first poll on count five, perjury, based on Libby’s sworn testimony that all he knew about Wilson’s wife he’d heard from reporters. (“All I had was that reporters are telling us that . . . I didn’t know if it was true.”) The vote was 9–2 to convict. The jurors slept on it, and the next day, those in favor of conviction suggested the other two try to persuade them that the government hadn’t proved its case. “I just think he [Libby] was confused,” said one. The other argued, “I just don’t see why a man with that much intelligence and being a lawyer would lie.” But they faced the same struggle that the defense team had: there was no actual evidence to support either hypothesis. When the jurors voted again, they were unanimous in favor of conviction on count five.
They spent most of their time on count three, which was Libby’s account of his interview with Cooper. “We had a spirited back-and-forth,” juror Collins recalled, but he, for one, was insistent that Libby be acquitted. “There were flaws in the FBI notes,” he said. Although they were “minor things,” and he thought they were “going to the correct place,” they weren’t sufficiently reliable. Once that was resolved, they moved quickly through counts one, two, and four.
On March 6, 2007, at 11:45 a.m., after ten days of deliberations, the jury notified Judge Walton that it had reached a unanimous verdict on all counts. Libby, his lawyers, his wife, the prosecution team, and a full press gallery hastily reassembled in the courtroom. As the jurors filed in, none looked toward Libby. “You may be seated,” the judge said. “Has the jury reached a unanimous verdict in the case of
United States of America versus I. Lewis Libby
?”
“We have.”
“As to count one of the indictment, charging obstruction of justice, is your verdict guilty or not guilty?”
“Guilty.”
“As to count two . . . guilty or not guilty?”