It’s simple, said special prosecutor Patrick Fitzgerald during his opening argument at the trial of I. Lewis “Scooter” Libby: Vice President Dick Cheney’s onetime chief of staff lied to the FBI and a grand jury to cover up his and Cheney’s involvement in the leak that outed Valerie (Plame) Wilson as a CIA official.

This is a twisted, complicated and dark tale, said Ted Wells, a lead lawyer for Libby: one of conspiracies, bureaucratic infighting, turf wars, backroom deals, terrorist plots (involving nuclear weapons and anthrax) against the United States, and assorted memory lapses, convenient and accidental. Libby merely engaged in no-harm-intended forgetfulness, Wells insisted, and, moreover, he was “set up” by Karl Rove as a “sacrificial lamb” in a White House melodrama starring Cheney, who supposedly was defending Libby from a White House effort designed to protect Rove at all costs.

Both lawyers told the jury that the case–in which Libby faces five charges of obstructing justice, perjury and making false statements to government investigators–is not about the war in Iraq or the administration’s use of false information to sell the public on the war.

And as the two legal teams began their courtroom battle, new information was disclosed about the leak affair, including the revelation that Ari Fleischer, White House press secretary at the time of the leak, had identified Valerie Wilson as a CIA officer to NBC News reporter David Gregory a week before the leak appeared in Robert Novak’s July 14, 2003 column, and that Fleischer, during the subsequent criminal investigation, took the Fifth Amendment and demanded (and received) immunity before testifying to Fitzgerald’s’ grand jury. Fleischer told the grand jury that he had learned about Valerie Wilson’s CIA affiliation first from Libby and then from Dan Bartlett, the White House communications director. (This directly implicated yet two more White House officials in the scandal.) Gregory, though, did not report the information, and he later declined to talk to Fitzgerald about his conversation with Fleischer. Fitzgerald never subpoenaed him. (In a response to an email from a colleague asking about today’s disclosure, Gregory emailed, “I can’t help you, sorry.”) The first day of the trial also brought the news that after the Justice Department opened an investigation of the CIA leak in fall 2003, Cheney pressured the White House press office to make a statement clearing Libby of any wrongdoing.

Libby, Fitzgerald argued, committed a straightforward crime: lying to the FBI and the grand jury, as each was investigating the leak. The case, Fitzgerald acknowledged, has been playing against a large backdrop: the war in Iraq and the controversy regarding the Bush administration’s selling of the war. He also conceded that it grew out of the leak scandal and the question of who in the Bush administration had outed Valerie Wilson to reporters after Joseph Wilson publicly accused the White House of having twisted and misrepresented the prewar intelligence. But Fitzgerald attempted to focus the jury on a limited matter: several statements Libby made to the FBI and the grand jury about his role in the leak affair.

In those statements–made during two FBI interviews and two grand jury appearances–Libby said that though he had once possessed official information about Valerie Wilson’s CIA employment, he had forgotten all about that, that he then heard about her CIA connection from reporters (mainly, Tim Russert of Meet the Press), and that he subsequently discussed this gossip (not official information) with other reporters. His explanation was essentially this: I forgot to remember what I had once known but had forgotten.

Fitzgerald vowed that he would demonstrate this was a pack of lies. He previewed evidence and testimony cited in the indictment and pretrial submissions that (according to Fitzgerald) shows that Libby in June and early July 2003 was an active gatherer of official (and classified) information on Joseph Wilson and his wife. Fitzgerald pointed to several witnesses who will testify that Libby requested information on the Wilsons from them when they were government officials: Marc Grossman, the No. 3 at the State Department, Robert Grenier, a CIA official, Craig Schmall, a CIA briefer, and Cathie Martin, a spokesperson for Cheney. (Fitzgerald said that Libby called Grenier out of meeting to receive information on the Wilsons from him.) He also noted that Libby, according to Libby’s own notes, had learned from Cheney that Valerie Wilson worked at the Counterproliferation Division of the CIA. (This is a unit within the agency’s clandestine operations directorate.)

And then Fitzgerald said that he would produce several witnesses to prove that Libby, after obtaining official information on the Wilsons, conveyed some of it to two reporters (Judith Miller of The New York Times and Matt Cooper of Time) and to the White House press secretary at the time, Ari Fleischer (with the warning the material was “hush-hush”).

Libby’s story to the FBI and the grand jury was that on July 10, 2003–four days after Joe Wilson had published an op-ed article noting he had inside information proving the administration had misrepresented the case for war–he had called Russert, that Russert had told him that Wilson’s wife worked at the CIA, and that he (Libby) had believed that he was learning about her for the first time. (Libby testified that he was “taken aback” when he heard from Russert that Wilson’s wife was a CIA official.) Yet, according to Fitzgerald, Libby had already discussed Valerie Wilson and her CIA affiliation with Fleischer on July 7 and with Miller on July 8. “You cannot learn something startling on Thursday that you were giving out on Monday and Tuesday,” Fitzgerald declared. He charged that Libby had concocted the Russert tale to “wipe out” the fact that Libby had earlier been told about Valerie Wilson by Cheney. “This is not a case about bad memory,” he maintained. Libby, he said, had been caught in a cover-up.

A diagram of Fitzgerald’s case would be a straight line: Libby sought official information, he shared this classified material with reporters, he then made up a story to hide all this from investigators. To get a graphic representation of Well’s argument, take a large pot of spaghetti–with plenty of sauce–and hurl it against the wall. Then look at the wall.

In his opening statement, Wells said the case was about forgetting–and about White House payback, Karl Rove’s manipulations, dueling between the CIA and 1600 Pennsylvania, conspiring between NBC News and the prosecutors, and much more. Libby, he declared, “is totally innocent.” He argued that Libby had done nothing wrong, that he had not “pushed” any reporters to write about Valerie Wilson, that that he had no reason to lie, that he was not concerned about losing his job, but that he was “concerned about being set up…about being the scapegoat for this entire Valerie Wilson controversy.” Wells claimed that after the criminal investigation had begun, Libby met with Cheney and complained that “people in the White House” were “trying to sacrifice me…and trying to protect Karl Rove.” (At that point, White House press secretary Scott McClellan, who had replaced Flesicher, had publicly declared that Rove was not involved in the leak–even though Rove, as would later become public, had been the primary source for the Novak column.) Responding to Libby’s gripe, Cheney wrote a note that said, “Not going to protect one staff [and] sacrifice the guy that was asked to stick his neck in the meat grinder because of the incompetence of others.”

The “meat grinder,” according to Wells, was the White House’s fierce effort to rebut criticisms from Joe Wilson. Libby, he claimed, had indeed talked to reporters about Joe Wilson, but only to challenge Wilson’s charges on the merits, not to discuss Wilson’s wife. And this had taken place during the intense firestorm that Wilson had set off with his op-ed article. Because the CIA had screwed up the prewar intelligence, Wells suggested, Libby, acting on orders from Cheney and Bush, was trying to combat the popular perception–fueled by Wilson–that the White House had cooked the books on the way to war. After the criminal investigation began, Wells continued, the White House was willing to toss Libby to the wolves because Rove, the mastermind of the GOP, was too valuable to lose.

It was a bit fuzzy. How did Rove set up Libby to make false statements–honestly or not–to the FBI and the grand jury? Wells did not explain that. But his defense had much more to it. While trying to depict Libby as a pawn in a big-picture nightmare, he also characterized the case as even more narrow than did Fitzgerald. He argued that Fitzgerald’s prosecution rested on “snippets”of three conversations Libby had with reporters that lasted no longer than 20 or 30 seconds. (Those reporters would be Russert, Cooper and Miller.) These journalists, he said, each did not have the clearest recollections of the calls, and none had good notes of the exchanges. He even noted that Russert–who has testified he did not know anything about Wilson’s wife when he spoke with Libby–might be wrong and that it is possible that Russert had heard about Wilson’s wife from David Gregory, his colleague at NBC News. But, Wells added, Russert was never asked about this possibility because he cut a deal with Fitzgerald to talk only about his phone call with Libby. What was going on here? Wells wondered, hinting at improper government-media collusion.

Wells also had another explanation of the Russert-Libby meeting. Maybe Libby, when he testified about it, confused Russert with Novak. Wells said that Novak will testify that he did speak to Libby at the time of the Russert conversation and might have told Libby that he was about to publish a column about Wilson’s wife. So perhaps Libby had indeed learned about Wilson’s wife from a reporter (Novak) and simply had a good-faith memory slip, mistakenly attributing that call to Russert. After all, Wells asked the jurors, who can recall what phone conversations he or she had three months earlier? Libby, he added, “was known in the office for having a bad memory,” and Libby was quite busy with national security issues “trying to connect the dots so we don’t have another 9/11.” (Wells introduced a schedule of the week of July 7, 2003, showing that Libby received briefings every morning that included information about possible terrorism attacks on the United States.)

“The case is far more complex than what you heard,” Wells told the jurors, referring to Fitzgerald’s opening presentation. He certainly made it seem more complex. He promised to raise critical questions about the credibility of key witnesses. He said he would show Libby had no motive to lie. His strategy is to litigate the controversy, create multiple and intricate narratives, cast doubt on the testimony of reporters and government officials. He’s being a good defense attorney. He does not have to prove anything; he only has to sow confusion–so that at least one juror says, I can’t sort all this out. Fitzgerald has some strong facts on his side. (How could Libby have testified he was “taken aback” when Russert supposedly told him about Valerie Wilson’s CIA connection, if Cheney had already informed him about her CIA position?) But Libby’s legal team has a lot of spaghetti to throw at the jury. This will not be an easy trial for either side.


DON”T FORGET ABOUT HUBRIS: THE INSIDE STORY OF SPIN, SCANDAL, AND THE SELLING OF THE IRAQ WAR, the best-selling book by David Corn and Michael Isikoff. Click here for information on the book. The New York Times calls Hubris “the most comprehensive account of the White House’s political machinations” and “fascinating reading.” The Washington Post says, “There have been many books about the Iraq war….This one, however, pulls together with unusually shocking clarity the multiple failures of process and statecraft.” Tom Brokaw notes Hubris “is a bold and provocative book that will quickly become an explosive part of the national debate on how we got involved in Iraq.” Hendrik Hertzberg, senior editor of The New Yorker notes, “The selling of Bush’s Iraq debacle is one of the most important–and appalling–stories of the last half-century, and Michael Isikoff and David Corn have reported the hell out of it.” For highlights from Hubris, click here.