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Libby Trial: Lawyers Clash Over Motive | The Nation

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Capital Games

 Washington: a city of denials, spin, and political calculations. The Nation's former DC editor David Corn spent 2002-2007 blogging on the policies, personalities and lies that spew out of the nation's capital. The complete archive appears below. Corn is now the DC editor at Mother Jones.

Libby Trial: Lawyers Clash Over Motive

Scooter Libby was thrown under the bus. No, Scooter Libby gave the bus driver false directions.

On Thursday, the prosecution and the defense in the trial of I. Lewis "Scooter" Libby spent much of the day clashing over evidentiary matters, but, as they battled, each side laid out its core theory.

The initial dispute concerned special counsel Patrick Fitzgerald's effort to enter into evidence video clips of White House press briefings held in October 2003 shortly after the news broke that the Justice Department, at the CIA's request, was launching a criminal investigation of the leak that outed Valerie Wilson, the wife of former Ambassador Joseph Wilson, as a CIA officer.

Here's the background: in mid-September 2003, White House press secretary Scott McClellan responded to a remark made by Joe Wilson, in which the former diplomat said he looked forward to the day when Karl Rove would be "frog-marched" out of the White House for having been involved in the CIA leak. It was "totally ridiculous," McClellan said, to suggest that Rove was a party to this leak. (Reality break: as was revealed years later, Rove had slipped information on Valerie Wilson's CIA connection to rightwing columnist Robert Novak and Time's Matt Cooper.) After the criminal investigation became public in late September 2003, McClellan again told reporters Rove had nothing to do with the leak. But when he was asked about Scooter Libby, Vice President Dick Cheney's chief of staff, McClellan declined to offer a similar denial.

Libby freaked out. According to Ted Wells, one of Libby's attorneys, Libby went to McClellan and White House chief of staff Andrew Card asking for the same treatment that Rove got. They "blew him off," Wells exclaimed in court. Then Libby went to his boss, with talking points he wanted McClellan to recite:

I've talked to Libby. I said it was ridiculous about Karl and it is ridiculous about Libby. Libby was not the source of the Novak story. And he did not leak classified information.

Cheney took the paper on which Libby had written these lines and added his own note:

Has to happen today. Call out to key press saying same thing about Scooter as Karl. Not going to protect one staffer + sacrifice the guy that we asked to stick his neck in the meat grinder because of the incompetence of others.

Lo and behold, during press briefings on October 7 and 10, McClellan declared that Libby, like Rove, was "not involved" in the CIA leak. A reporter asked if either had "told any reporter that Valerie Plame worked for the CIA." McClellan replied, "they assured me that they were not involved in this." He also said that any White House official who had leaked classified information would be booted out of the administration.

Fitzgerald wanted to play the video clips of these and another White House press briefing for the jury. Libby's legal team objected--vociferously.

The McClellan statements, Fitzgerald argued, were important because they provided Libby a motive to lie. Libby, Fitzgerald contended, had "put down a marker." He went to Cheney and had the White House issue a statement that he had not leaked classified information. Days later, he was interviewed by the FBI. He couldn't contradict what he had just forced McClellan to say. So, Fitzgerald maintained, Libby lied. Libby told the agents that he had merely picked up scuttlebutt about Valerie Wilson and her CIA connection from Tim Russert of Meet the Press and had passed that gossip to other reporters. No big deal.

During the trial, though, Fitzgerald has presented testimony and evidence indicating that at least five government officials--including Cheney--had provided Libby with official information about Wilson's wife. Former press secretary Ari Fleischer, former New York Times reporter Judith Miller and Matt Cooper have testified that Libby shared this information with them. (And Fitzgerald pointed out in his indictment of Libby that Valerie Wilson's employment status at the CIA was "classified.") But, Fitzgerald said on Thursday, when questioned by the FBI, Libby had "to say that what he leaked to reporters was not [from] an official source....He [had] to tell a story that is consistent with what he just had the White House tell the world." Thus, he cooked up a false account: Russert had been his source and at the time of the leak he possessed no certain and official (a.k.a. classified) information about Wilson's wife. And because McClellan had said that anyone involved in the leak would be canned, Fitzgerald maintained, Libby had further cause to concoct a cover story.

There's a weird wrinkle. At his first FBI interview, which happened on October 14, 2003, Libby acknowledged that in early June 2003--before the Wilson affair erupted and the leak occurred--the vice president had told him that Valerie Wilson worked at the CIA's Counterproliferation Division, which was part of the agency's clandestine operations directorate. There are notes of that call--and Libby shared them with the FBI. Yet Libby told the FBI that shortly after speaking to Cheney about Wilson's wife he completely forgot that conversation and that when weeks later he heard about Valerie Wilson's CIA employment from Russert, he believed he was learning about it for the first time. (Russert denies saying anything to Libby about Valerie Wilson). This is a hard-to-believe scenario. But it tracks with Fitzgerald's theory: Libby lied to hide the fact that he had possessed and spread official information about Wilson's wife.

The prosecutor wanted the McClellan statements entered into the record to demonstrate that Libby had reasons to mislead the investigators.

No, its just the opposite, declared Wells, who opposed showing the jurors these McClellan clips. Libby, he claimed, was not concerned about losing his job: "he was concerned they were scapegoating him." They? Wells meant the White House. Who in the White House? Wells hasn't said, but he's hinted that Rove was at the center of a get-Libby conspiracy that was trying to turn Libby into Washington-scandal roadkill. "The government," Wells argued, "says what motivated him to lie was that he thought he would be fired.....My response is that he didn't care [about losing his job]...He acted like an innocent person...Only an innocent person would go to the vice president and say what they're doing is unfair," regarding clearing Rove but not Libby. And Bill Jeffress, another Libby lawyer, maintained that the clips of McClellan would be prejudicial to his client, for they show reporters fiercely grilling McClellan and suggesting that serious wrongdoing had occurred.

Fitzgerald counter-argued: the fact that McClellan did clear Libby indicates there "was no effort to throw him under the bus...Mr. McClellan was standing in front of the bus."

After much back and forth, federal district Judge Reggie Walton ruled that excerpts of McClellan's press briefings could be shown to the jury. Fitzgerald had won this skirmish. And once more, Wells and Jeffress had telegraphed the case they may try to present when the prosecution concludes. The logic of Wells' argument is not yet evident. Libby feared he was being hung out to dry. Perhaps. Even if that were true, though, the White House publicly cleared him before he spoke to the FBI. So why would a White House plot against Libby (that apparently failed--if it existed) affect what Libby would say to the FBI regarding what he had known and said about Valerie Wilson three months earlier?

It doesn't track. But if the defense calls Cheney to the stand--as it has said it might--jurors, no doubt, will want to hear the vice president discuss this sacrifice-Libby-for-Rove skullduggery. They may also want to learn more about the phone call in which Cheney clued in Libby on Valerie Wilson's gig at the CIA. What was Cheney doing gathering information on Wilson at that early point? (Libby told the FBI that he believed Cheney had obtained this information from CIA chief George Tenet.) And after Deborah Bond, an FBI agent, testified for the prosecution on Thursday, there was another matter a juror might want Cheney to explain.

Bond disclosed that during Libby's second FBI interview he said he believed that after he had spoken to Russert (and supposedly had learned anew that Wilson's wife was CIA) he and Cheney discussed whether to disclose Valerie Wilson's CIA connection to the press. But Libby told the FBI he wasn't sure such a conversation had happened.

Still, this was news. That statement probably caused FBI agents and Fitzgerald to wonder during the investigation if Cheney and Libby had conspired to leak information on Joseph Wilson's wife. If Cheney takes the stand, a sharp juror ought to be interested in hearing whether the vice president has anything to say about this. (The safe bet: no.)

On Thursday evening, as the court recessed for the week, Fitzgerald noted that once Bond finishes testifying on Monday, he will play for the jury the seven hours of testimony Libby gave the grand jury. After that, he will call Russert and perhaps one other (unnamed) witness before concluding his case.

Wells and Jeffress then will present their witnesses (should they choose to do so). Will Rove be called to the stand, so they can question him about the plot against Libby? Will Cheney be called to bolster the Single Scapegoat Theory (and to explain other mysteries)? Will Libby's lawyers trot out witnesses who testify about the bitter feuding that went on between the White House and the CIA over the WMD controversy, so they can suggest Libby was an innocent caught in this crossfire? Will they present witnesses who claim the intelligence Wilson attacked was really correct, so Wells and Jeffress can depict Libby as a defender of the truth? Will they offer witnesses who testify that Richard Armitage, the former deputy secretary of state, was the guy who first leaked to Novak, so the defense can argue that Armitage, not Libby, should be the fall guy in this caper?

Maybe Wells and Jeffress will merely stick to witnesses who challenge the credibility of prosecution witnesses. Then again, they might turn toward the jurors and blast them with paint guns--that is, overwhelm the jury with a mess of confusion. Libby's lawyers have presented a foundation for doing anything and everything. The bus could go flying off the road.

*****

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.

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