Swing and a miss. Swing and a miss. Swing and a miss. As the I. Lewis “Scooter” Libby perjury trial headed toward a finale, Libby’s attorneys on Wednesday made several last-minute stabs to bolster its defense–and federal district Judge Reggie Walton shot each down.
The defense wanted to bring Tim Russert, the Meet the Press star, back to the witness stand. Russert had appeared as a key witness for the prosecution. When Libby, then chief of staff for Vice President Dick Cheney, was questioned in 2003 and 2004 by FBI agents and a grand jury investigating the leak that outed Valerie Wilson as a CIA officer, he claimed that at the time of the leak he possessed no official information about Valerie Wilson and her CIA employment and that he had only heard gossip from Russert about her. In his indictment of Libby, special prosecutor Patrick Fitzgerald claimed this was a lie, and Russert testified that he had told Libby nothing about Valerie Wilson because he knew nothing about her.
So Libby’s lawyers were hoping to get another chance to attack Russert’s credibility. As a prosecution witness, Russert had testified for twelve minutes before Wells cross-examined him for five hours, nicking but not truly wounding the newsman. That was not good enough for the defense. Libby’s lawyers argued to Judge Walton–outside the presence of the jury–that they should be allowed to call Russert back to the stand. The issue at hand was a statement Russert made during his testimony in which he said he didn’t realize a grand jury witness is not allowed to have a lawyer present when testifying before a grand jury. Libby’s legal team–combing print and video archives–had found NBC News clips from the days of Monica Lewinsky and Whitewater when Russert had informed viewers that a grand jury witness couldn’t have a lawyer by his or her side.
Why did a contradiction between Russert’s recent testimony and a nine-year-old television clip matter? Ted Wells, Libby’s lead lawyer, argued that because Russert had been allowed to give a deposition to Fitzgerald in a lawyer’s office with his own attorney present–rather than appear as grand jury witness with no lawyer to help him–Russert had received a favor from Fitzgerald and might have consequently crafted his testimony to benefit the prosecution. Wells asked to be allowed to call Russert back and play those Clinton-era tapes for the jury.
Walton said no. “It’s a totally collateral matter,” he declared.
Wells and his crew desired something else from the judge: permission to enter into the record a statement covering the details of the national security matters that Libby was working on at the time of the leak, his two FBI interviews, and his two grand jury appearances. This statement–based on classified information–was drafted before the trial, and the judge and relevant government agencies vetted the document and agreed it could be presented in court so Libby’s defense would not reveal classified material. But Fitzgerald argued that the document had been drafted only for use if Libby testified–to allow him to show the jury what was on his mind at these times without disclosing secret information. If he won’t testify, the prosecutor maintained, the statement shouldn’t be presented to the jury. John Cline, a Libby attorney, argued vigorously. Walton was not persuaded, noting that the statement “was supposed to be a substitution” for Libby’s testimony. Without Libby testifying, Walton said, putting the statement into evidence would not be fair.