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Capital Games | 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.

Fitzgerald Turns Down Waxman in CIA Leak Case

Members of the Libby Lobby--those conservatives who have urged George W. Bush to pardon Scooter Libby--have decried special prosecutor Patrick Fitzgerald and derided the case he brought against Dick Cheney's former chief of staff as a political persecution. "The criminalization of politics," virtue cop/gambling addict Bill Bennett called it. This attack is the culmination of a campaign that has depicted Fitzgerald as a run-amok prosecutor who abused his power to follow an agenda.

Fitzgerald, though, has refused to cooperate with this campaign. Just ask Representative Henry Waxman, who was hoping to draw the prosecutor as a witness to a congressional hearing this week on the CIA leak case. Fitzgerald apparently had no interest in appearing at an event where he would have an easy opportunity to score political points and settle scores. More on that in a moment.

Fitzgerald has taken plenty of incoming from various quarters. For years, he has been pummeled by media rights champions for his decision to pursue reporters with subpoenas (which led to the imprisonment of then-New York Times reporter Judith Miller for 85 days). But Jack Shafer, media follower for Slate and once a denouncer of Fitzgerald and his methods, recently offered a post-verdict reassessment:

The press (including me) may have overreacted in regarding special prosecutor Patrick J. Fitzgerald as some sort of Torquemada, and our fears of a shredded First Amendment are starting to look a little overwrought.

Like other journalists, I had shared Shafer's concern about the precedent Fitzgerald established. (Conspiracy declared: Shafer is a friend.) But it's clear that there has not been a tremendous chilling effect, in that stories about CIA prisons, fired US attorneys, FBI abuses, and the like continue to appear. Official sources still leak--whether as whistleblowers informing the public of government misdeeds or as bureaucratic feuders looking to stab a foe in the neck.

So the portrayal of Fitzgerald as Wrecker of the First Amendment has been overblown, though--to be nuanced about it--he leaves behind a record that could be cited by other prosecutors to come. But what about the rightwing complaint that the Libby case was a political assault?

Fitzgerald claims to be an independent (in political party terms), and throughout the case he insisted the prosecution of Libby was not about the Iraq war or how the Bush administration had steered the country into the mess there. Libby advocates can dismiss these indicators; they can note it's easy to claim partisan independence (what's really in his heart?) and argue it was tactically wise for Fitzgerald to deny the case was related to the war. But there's more that undermines the conservative case against Fitzgerald.

At the trial, Fitzgerald chose not to call Dick Cheney or Karl Rove to the stand. If this prosecutor was looking to cause political damage, he passed up two grand opportunities. He could have grilled each for hours. With the vice president, he could have asked a series of potentially embarrassing questions about Cheney's involvement in the campaign to undermine former Ambassador Joseph Wilson, an administration critic. Cheney, according to Libby, was the first official to tell Libby that Wilson's wife worked at the CIA's Counterproliferation Division, which is a unit in the agency's clandestine operations directorate. Fitzgerald could have questioned Cheney about that and about Cheney's own efforts to gather information on the Wilsons and to leak selective pieces of intelligence to administration-friendly reporters (such as Judy Miller and the editorial page editors of The Wall Street Journal. He could have interrogated Cheney about the vice president's curious lack of curiosity when Libby volunteered to tell the boss everything about his involvement in the leak affair. Cheney, according to Libby, indicated to Libby he didn't want to know. (See here.)

Fitzgerald could have had a field day with the vice president. And he was prepared to do so--if Libby's defense attorneys were to place Cheney on the stand. But after Fitzgerald refrained from calling the vice president as a witness, Libby's lawyers decided it would be risky, if not foolish, to do so.

Ditto for Rove. With Rove on the stand, Fitzgerald could have asked Bush's top strategist about his role in the leak. (Rove leaked to Bob Novak for the column that outed Valerie Wilson as a CIA officer, and he also disclosed information about her to Matt Cooper, then of Time.) Fitzgerald could have also asked Rove why he told White House press secretary Scott McClellan that he was not involved in the leak, how he managed to keep his job (given the White House position that anyone connected to the leak would be dismissed), and what Bush had known about Rove's leak-related shenanigans.

Rove and Cheney on the stand--it would have been murder for the administration. Fitzgerald, though, didn't pull the trigger. Such restraint undercuts the charge he mounted a political prosecution.

After the verdict, Representative Waxman, the Democratic chairman of the government reform committee, wrote to Fitzgerald and asked the prosecutor to talk to him and Representative Tom Davis, the senior Republican on the committee, about meeting with and/or testifying before the committee regarding "your views and the insights you obtained during the course of your investigation." In a March 14 letter, Fitzgerald, who is also US attorney in Chicago, turned them down, explaining that the Libby case was still pending (due to possible appeals) and that he did not believe "it would be appropriate for me to offer opinions." In a polite brush-off, he suggested that Waxman review the material introduced during the trial. (Despite receiving regrets from Fitzgerald, Waxman is going ahead with the March 17 hearing featuring Valerie Wilson.)

Fitzgerald is no grandstander. He did not exploit the opportunity to inflict maximum damage on the Bush administration. He brought a narrow case against Libby and convinced a jury. Trying to distort the narrative, Libby's comrades claim that Fitzgerald's endeavor was pure politics. The evidence shows they don't have a case.

******

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.

Edwards Wins the Gonzales Primary

UPDATE: This just in from ABC News: "In an exclusive interview to air Wednesday morning, March 14, on "Good Morning America," Sen. Hillary Clinton, D-N.Y., the frontrunner for the Democratic presidential nomination, for the first time called for the resignation of Attorney General Alberto Gonzales." HRC wasn't going to let Edwards enjoy his first-to-call-on-Gonzales-to-resign status for very long. See below.

Former Senator John Edwards wins. He's the first of the leading Democratic presidential candidates to call for the head of Attorney General Alberto Gonzales on a stick--that is, for the A.G. to resign over the still-expanding U.S. attorney scandal. After news stories appeared on Tuesday reporting White House involvement in the recent firings of federal prosecutors (including those who were unresponsive to Republican pressure to investigate Democrats), Edwards released this statement:

Today's news is only the latest and most disturbing sign of the politicization of justice under President Bush. From the abuse of investigative authority under the Patriot Act to the unconstitutional imprisonment of the Guantanamo Bay detainees and illegal torture of prisoners at Abu Ghraib and Bagram Air Force Base, this president has consistently shown contempt for the rule of law.

Attorney General Alberto Gonzales betrayed his public trust by playing politics when his job is to enforce and uphold the law. By violating that trust, he's done a great disservice to his office. If White House officials ordered this purge, he should have refused them. If they insisted, he should have resigned in protest. Attorney General Gonzales should certainly resign now.

Edwards left current Senators Hillary Clinton and Barack Obama in the dust. Earlier in the day, HRC's office put out a statement in which she called for more answers--from President Bush:

With the White House now acknowledging a direct role in the Justice Department's U.S. Attorney firings, the president must affirmatively step forward to explain what he is doing to address the politicization of our prosecutorial system and what role he and his aides played in this controversy.

The president is the chief executive of the country and this matter goes to the heart of his ability to manage our federal law enforcement and U.S. Attorney system. It is imperative that the president act swiftly to explain what role the White House played in this situation, hold those who acted inappropriately accountable, and take responsibility.

Yes, she asked Bush to take responsibility. Has she not been paying attention?

Obama took a similar stance, highlighting his previous opposition to Gonzales:

I opposed Mr. Gonzalez's nomination, in part, because he had shown in his role as White House Counsel a penchant for subverting justice to serve the President's political goals, and I feared that in an Attorney General. Sadly, the latest revelations underscore my concern. Americans deserve to know who in the White House is pulling the strings at the Department of Justice, and why. Anyone involved should appear under oath and answer these questions.

Round to Edwards.

That is perhaps a flippant way of looking at today's flurry of press releases from the Democratic candidates. But if this scandal does widen, expect Edwards to remind Democratic primary voters (over and over) that when evidence emerged suggesting the Bush administration perverted the federal prosecution system, he was the first to demand that Gonzales, who in 2005 approved the idea of firing a group of prosecutors, leave the administration. If the scandal peters out, no Democratic voter will hold it against Edwards that he demanded Gonzales' resignation. Yet he may well end up with the bragging rights. After all, you never know where a scandal is heading or how big it will become.

What's Alberto Gonzalez's worst mistake? Cast your vote in the Nation Poll.

Libby Trial: CIA Leak Case Ends with Guilty Verdict

Several minutes after noon on Tuesday, I. Lewis "Scooter" Libby sat in a crowded Washington court room and somberly watched as the forewoman of the jury in his obstruction of justice trial pronounced the verdict. "Guilty," she said, regarding Count One. She moved on to the other counts and repeated that word three times. The jury had found Vice President Dick Cheney's former chief of staff guilty on four out of five counts. Libby stared straight ahead. He showed no reaction.

Eleven Washingtonians had convicted a former senior Bush White House aide of lying. The case was narrow. It was not about who had leaked classified information outing Valerie Wilson as an undercover CIA officer; it was not about whether the Bush administration had manipulated the prewar intelligence to whip up public support for the invasion of Iraq; it was not about the war. Still, Libby had been on trial for having deliberately misled government investigators to protect himself--and perhaps the vice president--from a criminal inquiry that had come about because the White House had not been straight with the public about the war. In the face of criticism that the administration had hyped the prewar intelligence, the White House in June and July 2003 went on the offensive and mounted a campaign that included passing information to the media about a high-profile critic, former Ambassador Joseph Wilson. Cheney's office conducted a push-back operation of its own. In this swirl of damage-control and finger-pointing, administration officials leaked Valerie Wilson's CIA identity. And that leak beget the criminal investigation that caused Libby to lie.

Special prosecutor Patrick Fitzgerald charged that Libby obstructed justice, committed perjury and made false statements when he told FBI agents and the grand jury investigating the leak that he had possessed no official knowledge of Valerie Wilson and her CIA connection in the days before the leak appeared in Robert Novak's July 14, 2003 column. Libby acknowledged to the investigators that Cheney had told him weeks before the leak occurred that Wilson's wife worked at the CIA. But Libby claimed that he completely forgot this and that when Meet the Press host Tim Russert told him days before the leak happened that all the reporters in town knew Wilson's wife was CIA, he believed he was learning this information "anew" as gossip. He then, Libby maintained, passed along this scuttlebutt to two reporters--Judith Miller, then of The New York Times, and Matt Cooper, then of Time--only as unconfirmed rumor.

In Libby's telling, he had not disclosed any official and classified information to journalists. (Valerie Wilson's employment with the CIA was classified.) And a government official cannot be prosecuted for sharing chitchat he or she picked up from journalists. Such a story would take Libby (and any official who had passed him information on Valerie Wilson) out of the line of fire. But only if it were true.

Libby's account, Fitzgerald charged, was a cover story designed to remove him and the vice president from a leak investigation that was targeting the White House. At the trial, Fitzgerald methodically presented a series of witnesses who testified that weeks before the leak they had told Libby that Wilson's wife worked at the CIA: Marc Grossman, who had been undersecretary of state for policy in 2003; Robert Grenier, a former top CIA official; and Cathie Martin, who had been Cheney's communications director. Craig Schmall, Libby's CIA briefer at the time, testified that Libby had discussed Valerie Wilson with him. Schmall also testified that after the leak occurred, while he was briefing both Cheney and Libby, they asked him what he thought about the leak scandal. Noting that some commentators had dismissed the leak as "no big deal," Schmall explained that he considered it a "grave danger." He explained to Libby and Cheney that foreign intelligence services could now investigate everyone who had come into contact with Valerie Wilson when she had served overseas. "Those people," he said, "innocent or otherwise, could be harassed...tortured or killed

Fitzgerald also called Ari Fleischer, a former White House press secretary, as a witness. Fleischer, who had struck an immunity deal with Fitzgerald in return for his testimony, testified that on July 7, 2003--the day after Joseph Wilson published an op-ed piece accusing the White House of having twisted the prewar intelligence--Libby disclosed Valerie Wilson's CIA link to him at lunch and said this information was "hush-hush." The conversation Fleischer recalled, was "odd." (Fleischer also testified that he had leaked information to two reporters about Valerie Wilson--although it was unclear whether he had done anything more than egg on these reporters to discover her CIA connection. Later in the trial, Washington Post reporter testified that Fleischer had disclosed Valerie Wilson's CIA connection to him.)

Fitzgerald presented three journalists as witnesses who contradicted Libby. Judy Miller claimed Libby had told her about Wilson's wife in three different confidential interviews, beginning with a meeting on June 23, 2003. Matt Cooper testified Libby had confirmed for him the leak about Valerie Wilson he had received from Karl Rove. Russert said there was no way he could have been Libby's source for any information on Valerie Wilson because he knew nothing about her before reading about her in the Novak column.

It was a powerful case. All these witnesses--except Russert--said they had spoken to Libby about Wilson's wife prior to the leak. Three said they had provided Libby information about her. (And Libby had conceded that Cheney had done so, too.) Libby, though, had told the FBI and the grand jury he had known nothing concrete about her at the time of the leak. And his explanation was convoluted: yes, Cheney had told him that Valerie Wilson worked at the CIA; but he had forgotten that the vice president had done so; he then heard about her from Russert and believed this was the first time he was learning about her. This defense--I knew, I forgot, I learned it anew and was surprised--was implausible.

Ted Wells, a tall and charismatic attorney leading Libby's defense, tried to convince the jury that these witnesses were unreliable (and all were similarly misremembering similar events that had not happened). He attempted to make the case seem bigger and deeper than it was. It's a twisted, complicated and dark tale, he said during opening arguments, 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 had engaged in no-harm-intended forgetfulness about a few "snippets" of conversation, Wells insisted. Moreover, Libby had been "set up" 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. "The case is far more complex than what you heard," Wells told the jurors. He suggested that he would bring Cheney to the stand--and Rove and Libby.

But Wells did none of that. He let Cheney off the hook. (Fitzgerald had prepared for a cross-examination that would last hours.) Rove, too, was not called--even though Libby had claimed he had told Rove about his call with Russert right after it happened. If that had been true, testimony from Rove presumably could have corroborated Libby's version of the Russert phone call--and could have blown a big hole in Fitzgerald's case. A sharp-eyed juror could have read Rove's absence from the witness stand as a sign that Libby had lied. And Libby himself stayed mum during the trial. His lawyers decided it would not be useful to place Libby in the position of having to repeat the same rhetorical acrobatics he had performed during his grand jury appearances. The defense ended its presentation without submitting any evidence to support its dramatic contentions that Libby had been set up by the White House, the CIA, the State Department or NBC News.

The jurors did not appear to have much trouble cutting through all the clutter tossed up by Libby's defense. They spent a week reviewing and organizing all the testimony and evidence (on 34 pages of poster-size paper) before assessing whether Fitzgerald had proved his case. They convicted Libby on the single obstruction of justice count, two perjury counts (regarding his testimony to the grand jury) and one false statement count (stemming from an FBI interview). The jury acquitted him on the weakest count in the indictment--a false statement count related to what he had told the FBI about his conversation with Matt Cooper.

Libby said nothing as he left the courtroom. He looked neither resigned nor surprised. Minutes later, he appeared with his lawyers in front of reporters and camera crews outside the courthouse. Wells declared his client was "totally innocent" and that they would continue to fight. He said he would file a motion for a new trial and that if that motion is denied, he will file an appeal. "Mr. Libby will be vindicated," he proclaimed. Libby made no comment.

After Libby and his lawyers walked off, Fitzgerald strode toward the microphones. He noted he was "gratified" by the verdict and explained that he had had no choice but to pursue Libby once he suspected that Cheney's former chief of staff had lied under oath. "It's every prosecutor's duty," he asserted. He declined to say what the verdict and case said--if anything--about the White House and the vice president's office. During the trial, he had declared that Libby's lies had placed a "cloud" over the vice president. Was such a cloud still present? he was asked. Fitzgerald refused to answer the question, but he said that by lying to the grand jury and the FBI, "Mr. Libby had failed to remove that cloud....Sometimes when people tell the truth, clouds disappear. Sometimes they do not."

Fitzgerald defended his decision to subpoena reporters--and to imprison Judy Miller for 85 days--stating that he had to question journalists in order to determine if Libby had lied to the investigators. But he cautioned that other prosecutors ought to be "very careful" when considering whether to chase after journalists as witnesses. He added that he did not expect to file any further charges. His investigation was done.

The trial was not a satisfying end to the leak case. Fitzgerald's mission was not to discover the whole truth of the saga and reveal all to the public (as he pointed out when speaking to reporters today). He was on the hunt for a crime--and for criminals. He ultimately concluded he could not prosecute the leakers--Rove, Libby, and then Deputy Secretary of State Richard Armitage--for having disclosed information regarding Valerie Wilson. (The law prohibiting government officials from intentionally revealing information about clandestine intelligence officials requires a prosecutor to prove the leaker knew the officer was undercover.) So his criminal investigation focused on whether Libby lied. (He also investigated Rove for having possibly lied to the grand jury but ultimately decided not to indict him.) Consequently, only information from his investigation related to the Libby cover-up became public. What else Fitzgerald uncovered remains a secret. And per the rules governing criminal cases, it will stay a secret, he told reporters.

After the verdict was delivered, only one juror, Denis Collins, a Washington Post reporter in the 1980s, spoke to the press. He noted that jurors more than once asked, Why was Libby here, not Rove, not someone else? "Where are these other guys?" he said. The jurors were convinced, he noted, that Libby was guilty as charged (on four of the counts). But the jurors also believed he had been ordered by Cheney to talk to reporters as part of the White House's spin operation. In other words, some White House wrongdoers or conspirators (if not conspirators in the strict legal definition of the word) had gotten off. But there was nothing the jurors could do about this, he said: "It was not a question of who we could punish about going to Iraq." What about the prospect of a presidential pardon? one reporter asked Collins. Will you feel cheated if Bush pardons him? No, Collins replied: "He's been pilloried. We found him guilty." (Conservatives have already started a campaign for a Libby pardon.)

Scooter Libby, once Cheney's top aide and one of the chief architects of the Iraq war, is now a criminal. He is the first White House official convicted of a crime since the Iran-contra scandal that tarred the administrations of President Ronald Reagan and the first President Bush. He is also a symbol of an administration that has lost credibility. How Bush and Cheney misrepresented the case for war and their disingenuous and dishonest post-invasion assertions about the war are more serious matters than the lies of the leak case. But the leak affair represents how this White House has done business and how it has mugged the truth. Libby is not only a fall guy for Cheney; he's a poster-child for the Bush administration. The guilty verdict applies only to Libby, but the guilt extends beyond.

******

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.

Libby Trial: Guilty, Guilty, Guilty, Guilty

The jury found Scooter Libby guilty on four of the five counts. The ruling: Vice President Cheney's former chief of staff lied to federal investigators. I'll be back with more later--after the prosecution and defense talk to the reporters at the court house.

Libby Trial: This Just In--A Verdict!

At 11:30, the reporters covering the obstruction of justice trial of Scooter Libby were notified that the jury had reached a verdict and that the verdict wil be read in court at noon.

More to come--obviously.

Libby Trial: More Waiting, More Jury Notes

The jurors in the obstruction of justice trial of I. Lewis "Scooter" Libby left early on Friday. But they do appear still to be diligently working through their review of the case. Before knocking off for the weekend, the jurors sent two notes to Judge Reggie Walton. The first note referred to one of the allegedly false statements Libby made to the FBI and grand jury investigating the CIA leak. This statement is part of the overall obstruction of justice count. "Are we supposed to evaluate the entire Libby transcripts (testimony) or would the court direct us to specific pages/line," it read. "Thank you."

The other note dealt with an overarching issue:

We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt.

How to interpret these communications? The jurors are fixing on both the specifics of the charges and on the larger themes of the case. They may be some conflicting views within the jury room. But these clues suggest the jurors are not yet stuck.

The second note is intriguing. Fitzgerald's case is partly based on the premise that if Vice President Dick Cheney, Undersecretary of State Marc Grossman, senior CIA official Robert Grenier, and vice presidential spokesperson Cathie Martin each told Scooter Libby around June 9 to June 12, 2003, that former Ambassador Joseph Wilson's wife worked at the CIA and if Libby talked about Valerie Wilson in the next few weeks with CIA briefer Craig Schmall, White House press secretary Ari Fleischer, and New York Times reporter Judith Miller, then Libby had to be lying when he told the FBI and grand jury that by July 11, 2003, he had forgotten completely about the wife. So completely that when Meet the Press host Tim Russert supposedly told him on July 11 about Wilson's wife and her CIA connection, Libby believed he was learning this fact "anew" and was even surprised by it.

Russert has testified he didn't tell Libby about Wilson's wife because he knew nothing about her until the leak blowing her cover appeared in Robert Novak's column three days later. But put that aside for a moment. The issue here is whether Libby's tale is plausible. He told the FBI and the grand jury not that his conversation with Russert rang a bell and reminded him of what he had once known about her but that he was learning this information about Valerie Wilson as if for the first time. In fact, he told the grand jury that at the time of the Russert phone call he didn't even know Joseph Wilson had a wife. Fitzgerald has asserted that Libby cooked up this story to protect himself and the vice president from the criminal investigation related to the leak.

Libby was pleading selective and total amnesia about one particular fact. The jurors may not be buying this. But they seem to be pondering what the standard of disbelief should be in order to declare him guilty not of misremembering but of purposeful lying. They appear to be asking if special counsel Patrick Fitzgerald has to prove that Libby's account is not "humanly possible" to win a conviction or if one can reasonably assume that such a tale of memory loss is implausible.

This is an important question that takes the jurors to one of the central points of the case. I'm not going to guess whether this indicates the jurors are closer to a conviction or an acquittal (or a hung jury). But they certainly seem to be thinking deeply about the matter and paying close attention to the details. Perhaps their deliberations will be swayed by the answers Walton provides them. On Friday afternoon, the judge announced he would deal with these matters first thing Monday morning.

******

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.

Libby Trial: Still Waiting--An Update

The below dispatch was filed on Thursday morning. On Thursday afternoon, Judge Reggie Walton called the attorneys for the government and the defense in the Libby trial into court. Why? The jury had sent him two requests. The jurors asked if they could cut out early on Friday at 2:00 pm. They also asked for a dictionary. The judge said yes to the Friday escape. He said no to the dictionary, explaining to the jury that if they had any questions about the definition of any word used in the instructions or the evidence they should consult with him, not a dictionary.

The meaning of all this? The jury is plowing ahead. And the jurors seem to be presuming they will not be done on Friday. As the judge said to the lawyers, "I assume they will not have a verdict tomorrow." But they are not yet stuck. Most of the jurors actually looked happy when they appeared in court. They did not appear frustrated, fed-up or upset. So the bottom-line hunch: they have a plan for reviewing the evidence and rendering a verdict--and there will be no resolution until next week.

Now for the earlier dispatch:

I'm still at the federal district courthouse waiting for the verdict in the obstruction of justice trial of I. Lewis "Scooter" Libby, the former chief of staff to Vice President Dick Cheney. But this just in: on Wednesday at 3:45 pm, the jurors sent a note to Judge Reggie Walton. It read in its entirety:

We would like another big Post-it pad. The large one for the easel.

The previous day, the jury had sent a question to the judge regarding Count Three of the indictment (which accuses Scooter Libby of lying to the FBI about statements he made to reporter Matt Cooper about former Ambassador Joe Wilson's wife). But by the time the judge was able to respond to the note on Wednesday morning, the jurors had already resolved the issue. "After further discussion," the jury foreperson wrote the judge, "we are clear on what we had to do. No further clarification needed. Thank you. We apologize."

After the matter--or non-matter--was resolved, the question was made public by the court. The jurors had asked, "Is the charge that the statement was made or about the content of the statement itself?" Reporters in the press room subsequently tried to discern precisely what the jurors were asking. It was not clear. Nor was the note a clue that pointed in any direction.

So what do these two notes mean? They suggest the jury is still hard at work, in the weeds, plodding through the details of the case--after six days of deliberation. The eleven jurors--one juror was booted because she came into contact with outside information on the case--are even on to their second easel pad. From that you can draw your own conclusions. I'm not making any guesses.

******

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.

Libby Trial: Waiting for the Verdict

I'm still at the federal district courthouse waiting for the verdict in the obstruction of justice tral of I. Lewis "Scooter" Libby, the former chief of staff to Vice President Dick Cheney. But this just in: on Wednesday at 3:45 pm, the jurors sent a note to Judge Reggie Walton. It read in its entirety:

We would like another big Post-it pad. The large one for the easel.

The previous day, the jury had sent a question to the judge regarding Count Three of the indictment (which accuses Scooter Libby of lying to the FBI about statements he made to reporter Matt Cooper about former Ambassador Joe Wilson's wife). But by the time the judge was able to respond to the note on Wednesday morning, the jurors had already resolved the issue. "After further discussion," the jury foreperson wrote the judge, "we are clear on what we had to do. No further clarification needed. Thank you. We apologize."

After the matter--or non-matter--was resolved, the question was made public by the court. The jurors had asked, "Is the charge that the statement was made or about the content of the statement itself?" Reporters in the press room subsequently tried to discern precisely what the jurors were asking. It was not clear. Nor was the note a clue that pointed in any direction.

So what do these two notes mean? They suggest the jury is still hard at work, in the weeds, plodding through the details of the case--after six days of deliberation. The eleven jurors--one juror was booted because she came into contact with outside information on the case--are even on to their second easel pad. From that you can draw your own conclusions. I'm not making any guesses.

******

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.

Libby Trial: Final Arguments about Scooter, Cheney & Truth

Cover-up or scapegoating.

Nine conversations or two.

Scooter Libby the liar, or Karl Rove the liar.

A cloud unfairly placed over Dick Cheney, or Libby and Cheney placing a cloud over the White House.

As the prosecution and the defense teams in the perjury trial of I. Lewis "Scooter" Libby presented closing arguments on Tuesday, each side tried to encapsulate its case--and portrayed distinctly opposing views of reality.

"This case was about lying," prosecutor Peter Zeidenberg said at the start of the government's summation. He maintained that during the CIA leak investigation Libby, the former chief of staff for Vice President Cheney, lied to the FBI and grand jury about how he had learned that Valerie Wilson was a CIA employee, whom he had talked to about her, and what he had told others about former Ambassador Joseph Wilson's wife. Referring to the opening argument of lead defense attorney Ted Wells, Zeidenberg pointed out that Team Libby had contended their client was an innocent man who had been turned into a sacrificial lamb by a White House desperate to protect Karl Rove, the administration's uber-strategist. But, he continued, Libby's lawyers introduced no evidence to support that flashy charge. "Unfulfilled promises from counsel," he added, "do not constitute evidence."

Zeidenberg asked the jurors to recall that nine witnesses had each said they had spoken to Libby about Wilson's wife and her CIA connection In June and July 2003. They contradicted the tale that Libby had told the FBI and the grand jury. In his FBI interviews and grand jury appearances, Libby had conceded that around June 11, 2003, Cheney told him that Wilson's wife worked at the CIA's Counterproliferation Division (which is part of clandestine operations directorate). But he claimed that he had been struck by total amnesia regarding this critical fact in the following weeks and learned about Valerie Wilson's CIA employment "anew" on July 11--three days before the leak appeared in a Robert Novak column--when NBC News' Tim Russert told him that "all the reporters" knew Wilson's wife was CIA. In Libby's account, when he had talked to reporters about Wilson's wife prior to the leak he had merely been passing along gossip (not official and classified information) he had picked up from Russert. (Russert testified he had said no such thing to Libby.)

This was nothing but a cover story, Zeidenberg charged: when Libby was questioned by the FBI in October 2003, he had reason to fear being caught up in the criminal investigation and to worry about losing his job. The prosecutor reviewed for the jurors the conversations Libby had during the relevant time period. Undersecretary of State Marc Grossman, senior CIA officer Robert Grenier, CIA briefer Craig Schmall, Cheney press spokesperson Cathie Martin--each testified he or she had talked to Libby about Wilson's wife in mid-June, within days of when Cheney had told Libby about Wilson's wife. Zeidenberg reminded the jurors that former White House press secretary Ari Fleischer testified Libby told him about Wilson's wife on July 7, 2003, and that Matt Cooper, formerly of Time, and Judith Miller, formerly of The New York Times, testified that Libby had spoken to them about Wilson's wife and her CIA employment prior to the leak.

The defense had taken shots at several of the prosecution witnesses, and Zeidenberg did his best to bolster their credibility. None, he argued, had reason to lie, and their accounts all pointed in the same direction. Could they all be lying or misremembering in a similar fashion? When Russert had been on the witness stand, Wells had accused him and NBC News of harboring a bias against Libby and the office of the vice president. Then why, Zeidenberg asked the jurors, did Cathie Martin testify that she had suggested that Cheney appear on Russert's Meet the Press in July 2003 to combat charges the White House had misrepresented the prewar intelligence?

Zeidenberg took on the defense's claim that Libby had been too busy with national security matters in 2003 and 2004 to remember accurately what he had known and said about Valerie Wilson. Listen to this, Zeidenberg told the jurors, and he played a portion of Libby's March 2004 grand jury testimony during which Libby was able to recall in detail a conversation he had with Rove on July 11, 2003. In that discussion, according to Libby, Rove told him that Novak had informed Rove that Wilson's wife worked at the CIA and that he (Novak) would be publishing a column about Wilson. Libby also told the grand jury that during this conversation he said to Rove that he had just heard from Russert about Wilson's wife. (Oddly--or not--the defense never called Rove as a witness to confirm Libby's claim that he had given Rove the same account of his Russert conversation that he had provided the FBI and grand jury.) Why could Libby, Zeidenberg asked rhetorically, recount specifics of this discussion but couldn't "recall one out of nine conversations that he himself had about Mr. Wilson's wife because it is a trivial detail?" There is a pattern, Zeidenberg added: Libby remembers the conversations he had with the government witnesses but never "the piece about Mr. Wilson's wife."

Libby, he argued, could even "remember with specificity what he didn't talk about" the week before the leak. When Libby appeared before the grand jury, he testified that in the days after Joe Wilson published a July 6, 2003, op-ed article--in which Wilson revealed that he had gone to Niger for the CIA to check if Iraq had been uranium-shopping there and reported back the charge was highly unlikely--he and Cheney talked about Wilson's mission. But Libby maintained that Cheney and he had not discussed the wife's CIA position until after the leak appeared in the Novak column. Zeidenberg reminded the jurors that Cheney had written a series of questions on a copy of the Wilson op-ed, including one asking whether Wilson's wife had sent him on a junket? "Ask yourself: the vice president has those questions," Zeidenberg said, "who is he going to discuss them with? Is he pondering these things on his own? Or discussing them with his chief of staff?" And is there nothing suspicious, he added, that Libby told the grand jury that he and Cheney in the week before the leak discussed all of Cheney's questions about the Wilson trip except the one about Wilson's wife?

The case has pitted Libby (and his claimed recollections) against several reporters (and their claimed recollections). And Libby's lawyers tried to knock down the testimony from Cooper, Miller and Russert. But Zeidenberg emphasized the core issue: could Libby have completely forgotten about her CIA connection and then learned it "anew." Addressing the jurors, Zeidenberg said, "Forget for the moment about the testimony of those nine conversations...it's simply not credible to believe that he would have forgotten this information about Wilson's wife from June 11 to July 11.....The vice president's office [at this time] is in the hot seat...They're asked the question over and over: why did Mr. Wilson say he was sent [on his Niger trip] by the vice president....Mr. Libby thinks he has an answer: the wife....And he wants you to believe...that he so completely forgets the information about Mr. Wilson's wife that when Russert tells him about it...it rings no bell?...It's just not credible."

Zeidenberg's summation of the case was straightforward and compact. He poked at Libby's hard-to-accept position: I knew, I forgot, then I knew again but forgot that I had forgotten. He explained there was a motive for Libby to lie to the FBI and the grand jury. It was a coherent tale about a fellow who tried to fib his way out of a tough spot. Perjury cases can be difficult because the prosecution has to prove the defendant's intention and state of knowledge. Special counsel Patrick Fitzgerald and Zeidenberg argued a hard case well.

"Maybe I was drunk when I made my opening," Ted Wells said, as he began his closing statement. He was referring to Zeidenberg's characterization of his opening presentation: "Sure sounded like I said a lot of things I could not deliver on." Wells claimed he had not promised to put on "a whole case of evidence" about a White House conspiracy to sacrifice Libby for Rove. "I promised I would show you a note," he said. And Wells pointed to a note written by Cheney in October 2003--after the White House had declared (erroneously) that Rove had not been involved in the Valerie Wilson leak--that said, "Not going to protect one staffer + sacrifice the guy that was asked to stick his neck in the meat grinder."

Why is this so significant? According to Wells, the note--written by Cheney in response to Libby's request that the White House also clear him of any wrongdoing in the leak case--is evidence Libby is innocent. Only an innocent man, Wells contended, would ask the White House to absolve him publicly and then--when rebuked by chief of staff Andrew Card and press secretary Scott McClellan--would beseech the vice president. Wells insisted that Libby had been hung out to dry by a White House eager to protect Rove.

But this was not a strong argument. After Cheney wrote that note, McClellan did clear Libby. And given that the White House had declared that Rove had not participated in the leak--even though Rove had been Robert Novak's second source--the fact that Libby wanted similar treatment does not prove his guilt or innocence. Sometimes guilty people want to be declared innocent.

Wells moved to another line of defense. He told the juror the case was simple: it was about two conversations. He meant Libby's phone call with Russert and a conversation Libby had with Matt Cooper. And, Wells added, this is all "he said/she said." He revisited questions about Cooper's and Russert's powers of recall that he raised earlier in the trial. But Wells was also being sly. The case is not merely about whose recollections are more accurate: the reporters or Libby. Wells was trying to distract the jurors from the nine conversations Zeidenberg had reviewed. A case based on two conversations--where there are no notes or third-party witnesses--is "madness," Wells proclaimed, adding, "there's a craziness to this case."

The defense team's closer had an air of disorganization. But that was the point. Wells and co-counsel Bill Jeffress threw whatever they could at the jury. That Russert has a memory problem and a vendetta against Libby--and that Russert actually may have known about Wilson's wife prior to his conversation with Libby. That Libby talked to eleven reporters and did not volunteer information to any of them about Valerie Wilson. That only Judy Miller said he leaked to her--and, Wells added, she cannot be believed. That Libby was too busy protecting the United States from terrorists to recall what had happened. That Libby would not have concocted such a cockamamie cover story that positioned Russert (whom Libby barely knew) as an alibi. That Rove and former Deputy Secretary of State Richard Armitage were the real leakers. That Libby was not at all worried about losing his job. That every participant in the case has forgotten one fact or another. That Valerie Wilson and her CIA connection was not important to Libby because, Wells said, "nobody cared at the office of the vice president." That Libby had no reason to fear any investigation because he had not known that Valerie Wilson was a clandestine CIA employee.

The defense was not linear. There was no narrative. There were many assertions and questions. The closest the defense came to a competing explanation of what happened was its tale of the Libby sellout. Noting that the White House had said that Rove had not leaked, Wells declared, "Rove lied....Rove did talk to Novak." And he put up a slide for the jury that showed photographs of Rove and Libby and carried the bottom-line explanation: "Save Rove/Sacrifice Libby." By complaining about this in October 2003, Scooter Libby, Wells reiterated, had demonstrated he was innocent of any wrongdoing in the leak case. (Wells was operating under the assumption that leakers never lie.) And Libby's lead lawyer slammed the Bush crew for not initially standing by his man: "That's not a team I'd like to be part of. The sure didn't treat [Libby] like he was part of the team."

Over and over, Wells and Jeffress did what defense layers routinely do: drill into the jurors that the government has the obligation to show beyond a reasonable doubt that Libby lied deliberately. The prosecution must present "powerful" evidence, Wells said repeatedly, and the jurors have to base their deliberations upon the presumption of Libby's innocence. Wells told the jurors, "There was memory problems with every witness" and he recalled that Grenier, a prosecution witness, had testified that his recollection of a conversation with Libby had "a fair amount of vagueness attached to it." Jeffress asked, "Which witness came in here and didn't get something wrong?"

Wells finished his case by returning to the sacrifice quasi-narrative, asking the jurors not to treat Libby as he was mistreated by the White House: "[If] someone [in the jury room] starts to say, 'He was a Republican, he worked for Cheney, let's do him,' help that person....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."

His finale was emotional. Scooter Libby is "a good person," Wells proclaimed, noting that Libby, during the trial, had been under Wells' care and protection. "I give him to you," he told the jurors. "Give him back to me. Just give him back." Wells voice broke; he choked back a sob. He sat down.

Then it was Fitzgerald's turn. After three years of working on this case, he, as is customary for prosecutors in a criminal case, would have the last word. "Madness," he exclaimed. "Madness. Outrageous....The government brought a case about two phone calls." He was mocking Wells. This was not a case of he-said/she-said, he explained; it was a case of he-said/he-said/he-said/she-said/he-said/he-said/he-said/she-said/he-said and he-said. "Is this the world's greatest coincidence?" he asked, contending that there could not be nine conversations with everyone remembering the wrong thing. And forget about Russert, he said. If Russert had been "run over by a bus and gone to the great news desk in the sky," the prosecution's case would stand: Libby learned about Wilson from Cheney and others yet claimed he had not.

Valerie Wilson and her CIA affiliation was no trivial matter for Libby and Cheney, Fitzgerald insisted. For Libby and Cheney, Fitzgerald said, Valerie Wilson "wasn't a person...she was an argument...a fact to use against Joe Wilson." He pointed out that there is physical evidence. According to the notes of Libby's CIA briefer, Libby told the briefer about Wilson and his wife a full month before Novak's column--and Libby did so during a briefing that covered heavy-duty national security issues, such as terrorist plots and the war in Iraq. This document, Fitzgerald said, "is a fingerprint of the defendant's brain."

Fitzgerald called the jury's attention to other documents that showed Libby and Cheney were nearly obsessed with the Wilson matter. He demonstrated that Cheney himself had helped create a set of talking points in early July about the Wilson imbroglio that began, "It is not clear who authorized Joe Wilson's 2002 trip to Niger." This showed, Fitzgerald argued, that the boss was concerned with the origins of Wilson's trip. (Cheney and Libby believed the media accounts made it appear that Cheney had directly dispatched Wilson, though Wilson had only been sent by the CIA in response to a question Cheney had put to his intelligence briefer.) Fitzgerald recounted how prosecution witnesses had testified that when Libby talked about Wilson's wife he did so in an unusual manner, as if Libby knew the subject was sensitive.

Fitzgerald came to the rescue of Judith Miller, whom he had sent to jail for 85 days before she agreed to cooperate with his investigation. The defense had had easy work in undermining her credibility--especially because she had forgotten in her first grand jury appearance to recall an entire meeting with Libby. But Fitzgerald walked the jurors through key portions of a memo on the Wilson trip that was sent to Libby on June 9, 2003. He then showed the jury portions of Miller's grand jury testimony in which she noted that Libby had shared these same specifics with her during a July 8 meeting at the St. Regis Hotel. This exercise was a twofer for Fitzgerald. He demonstrated that Miller could be a reliable witness and that Libby had been quite interested in and able to recall details about the Wilson matter. It seemed Libby did have a good memory on this topic.

Fitzgerald chugged along. He undercut the defense team's contention that Cooper's notes back up Libby's claim that he only shared scuttlebutt with Cooper. Fitzgerald scored points in rebutting the defense attorney's attacks on Russert. And he took on Wells' charge that the prosecution had throughout the trial attempted "to put a cloud over" Cheney. "There is a cloud on the vice president," Fitzgerald replied, explaining that Cheney had written notes indicating he was interested in the Valerie Wilson connection and that Cheney had sent Libby to the meeting with Judy Miller where Libby (according to Miller) told her that Wilson's wife worked at the CIA. "And that cloud remains," Fitzgerald declared, "because this defendant obstructed justice....That cloud was there. It was not something we put there." Cheney and Libby, Fitzgerald noted, could have held in July 2003 a press conference to reveal information they believed would undermine Joseph Wilson's attack on the White House. Instead, they went with a leak to Miller. But why would Libby rely on a Russert-told-me cover story that could not withstand close scrutiny? "The sad truth is that sometimes when people lie it looks dumb when they get caught," Fitzgerald said.

The prosecutor brushed aside the argument that Libby merely failed to remember what he had known and discussed about Valerie Wilson. Use your common sense, Fitzgerald asked the jury. Wells had earlier said that prosecuting Libby for not accurately recalling in October 2003 details of conversations he had in June and July 2003 was akin to asking a college student, who had spent a summer on a beach, to remember in the fall the specifics of a conversation he or she had the previous semester. That's nonsense, Fitzgerald retorted, noting that memories are dependent on "uniqueness, importance, and anger." Valerie Wilson's CIA connection was certainly unique, he maintained, and the vice president's office believed the Wilson trip was a significant topic. And Libby, according to the testimony of several prosecution witnesses, was angry about Wilson's claim that the White House and the vice president had manipulated the prewar intelligence. "When you think it's important, when you're focused on it, when you're angry about it--those are the things you remember," the prosecutor said. And, Fitzgerald added, Libby's CIA briefer had testified that he told Libby and Cheney that the disclosure of a clandestine CIA officer could lead to the harassment, torture or death of others. Even a 21-year-old, Fitzgerald said, would consider that important.

Winding up, Fitzgerald aimed at the entire Bush crew. "There's a cloud over the White House as to what happened" in the leak affair, he told the jury. There were questions as to whether the law was broken when Valerie Wilson's CIA cover was blown and "what role the defendant played...what role the vice president played." Looking straight at the jury, Fitzgerald asked, "Don't you think the FBI and the grand jury is entitled to straight answers." Instead, he said, Libby made up a story and obstructed justice. Echoing Wells' last lines, Fitzgerald declared of Libby, "He stole the truth from the judicial system. Give truth back." With that, Fitzgerald was done.

After weeks, each side had presented the expected arguments. The prosecution marshaled a set of concrete facts that appeared compelling and that supported a narrow narrative. The defense picked at each witness, raised a host of other matters, suggested alternative theories (and conspiracy theories) without proving any, cited reporters to whom Libby had not leaked, and claimed that Libby had testified accurately to the grand jury and the FBI and that if he had not he had merely committed good-faith memory slips.

Fitzgerald offered a solid case. Wells offered several possibilities for any juror looking for a peg for a reasonable-doubt argument. Now twelve jurors will have to answer the question: who was sacrificed--Scooter Libby or the truth?

******

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.

Libby Trial: Defense Rests on a Thin Case

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.

Next, the Libby lawyers made a bid to introduce as evidence details from intelligence briefings that Libby received about terrorist threats. The point: Libby was so consumed by hair-raising news of threats he could not be expected to care about or remember the minor Valerie Wilson matter. Fitzgerald objected. He argued that the defense was trying to suggest Libby's (overwhelmed) state of mind to the jury without placing their client on the stand and subjecting him to cross-examination. He also maintained that if the details from these briefings were introduced without context--that is, without explaining that Libby received such information on a daily basis--the jurors would not be able to evaluate whether the material was out of the ordinary and truly mind-bending.

Again, Walton sided with Fitzgerald and ruled against Libby. If he doesn't testify, the judge explained, he can't use this information. Instead, Walton allowed Cline to read a stipulation to the jury that repeated information already introduced. This stipulation noted that at a June 14, 2003 intelligence briefing--during which Libby mentioned Joseph and Valerie Wilson to his CIA briefer--he was presented information about a bomb being defused in Yemen, the arrest of a terrorist suspect elsewhere, a possible al Qaeda attack in the United States, Iraq's porous borders, demonstrations in Iran, developments in the Israeli-Palestinian conflict, a possible airport hijacking in England by a group linked to al Qaeda, a variety of potential terrorist attacks around the word, the 1920 Mesopotamia insurrection and its relevancy to the Iraqi insurgency, and other matters. Libby, according to the stipulation, requested additional information on two of the two dozen topics in the briefing.

Shortly after the stipulation was read, Wells told the judge, "The defense on behalf of Lewis Libby rests."

Team Libby concluded its case without offering any witness who was a direct party to the events at issue. It finished its presentation without producing any testimony or evidence to back up its assertion that Libby was the victim of a CIA plot, a State Department plot, a White House plot, an NBC News plot or some combination of these get-Libby conspiracies. It supplied little evidence that Libby was particularly forgetful. It offered no testimony to back up the notion that Libby had no motive to lie to the FBI and the grand jury. During opening arguments, Wells claimed he would show that Libby had no reason to fear for his job when he was questioned by the FBI and the grand jury. Wells said he could show that Cheney would have stuck by Libby no matter what and, thus, Libby had no incentive to cover up his involvement in the leak episode. Yet Wells put no one on the stand--say, Cheney--to support this claim. And he presented only one witness--New York Times managing editor Jill Abramson--to impeach the credibility of a prosecution witness: Judith Miller, a former Times reporter. Abramson was on and off the stand within minutes. Most of Libby's witnesses testified about events that were not part of the case.

And Libby said nothing. It was as if Wells didn't dare put his client on the stand to repeat the gymnastics he performed during his grand jury appearance when he essentially said, I forgot to remember what I had known but forgotten about Valerie Wilson. And Wells would not give Fitzgerald a crack at Cheney.

Nothing in defense presentation buttressed the dramatic statements Wells made at the start of the case. Libby's lawyers mounted a bombastic but skimpy defense: a lot of hat, not much cattle. This is not unusual in a criminal case. The defense has no obligation to present a case. The burden is upon the government. A defense lawyer can simply claim the prosecution fell short and leave it at that. Which is practically what Wells and his team are doing. As Wells said after resting his case, "There is no box on the verdict sheet [used by jurors] that says...did you tell the full story? It says guilty or not guilty." When the trial began, Wells claimed he and Libby had a story to tell. It turns out they don't.

Closing arguments are scheduled for next Tuesday.

******

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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