The news in the I. Lewis "Scooter" Libby perjury trial on Tuesday came as court was shutting down because of a slight snowfall in Washington: neither the defendant nor his onetime boss, Vice President Dick Cheney, will testify in the case. Ted Wells, Libby's lead lawyer, told federal district court Judge Reggie Walton in the afternoon that Team Libby had released Cheney as a potential witness and that Wells had recommended to Libby that they rest their case after the defense calls three minor witnesses on Wednesday (if the judge rules they can appear) and perhaps brings back Meet the Press host Tim Russert. Judge Walton asked Libby if he had accepted his lawyer's advice and did waive his right to testify. Libby stood up in court and replied, "Yes, sir."
The trial will end with a whimper, not a bang. The jurors will not hear the defendant defend his statements to the FBI and the grand jury that investigated the leak that outed Valerie Wilson as a CIA officer. They will not hear him claim that he honestly misremembered facts or that his recollections (as opposed to those of all the prosecution witnesses) are accurate. They will not hear Libby maintain that he was the victim of a--take-your-pick--CIA plot, State Department plot, White House plot or NBC News plot (as Wells has variously suggested throughout the trial). They will not hear Cheney vouch for the integrity of the man whom he recently called "one of the most honest men I've ever met."
Libby's attorneys will argue Libby's innocence (or lack of guilt) by attacking the credibility of Fitzgerald's witnesses, by suggesting Libby was too busy to recall accurately such a minor matter as Valerie Wilson's CIA employment, by maintaining that Libby might have done no worse than confused a couple of phone calls, by contending that because Libby did not leak information on Valerie Wilson to some of the reporters he spoke with, he did not leak it to Judith Miller, then of the New York Times, and Matt Cooper, then of Time.
With the decision not to testify, Libby spares himself the obligation of explaining the convoluted explanation he provided the FBI and grand jury. He told the investigators that although Cheney in early June 2003 had told him that Valerie Wilson worked at the Counterproliferation Division of the CIA, he (Libby) totally forgot this and then on July 11 learned it "anew" when Russert said to him that "all the reporters" knew that Wilson's wife was a CIA employee. In Libby's telling, Russert conversation had not reminded him of what Cheney previously told him. Libby essentially claimed he had been struck by total amnesia on this one fact. This was an important point because Libby asserted that when he spoke to Miller and Cooper on July 12, 2003, and mentioned Valerie Wilson and her CIA connection, he was only passing along gossip he had received from Russert--not official (and classified) information he had obtained from Cheney.
Moreover, Libby told the grand jurors that he didn't even know at the time of the leak that Wilson had a wife. Yet Fitzgerald has presented several past and present government officials who testified that in the weeks before the leak they provided official information about Wilson's wife to Libby. And former White House press secretary Ari Fleischer testified that Libby had told him about Wilson's wife a week before the leak became public in Robert Novak's July 14, 2003 column.
How could Libby clarify his FBI and grand jury statements? How could he have testified that he hadn't even known Wilson had a wife? Well, now he won't have to explain. When his lawyers present their closing argument, they will attack the credibility and memory of each prosecution witness and toss out evidence-free speculation about what was really happening behind the scenes regarding the CIA leak--all to confuse, or raise a reasonable doubt. Wells also has suggested he might argue that Russert--contrary to Russert's testimony--did know about Wilson's wife and might have indeed shared this tidbit with Libby.
Cheney is off the hook, too. At the start of the trial, the defense raised the dramatic prospect of the vice president on the stand, but such a move always was problematic. Would Cheney have any credibility as a witness? ("You can trust me: Scooter was so busy helping me run the Iraq war that he failed to testify accurately.") And could Cheney withstand a cross-examination from Fitzgerald, who might have been able to ask Cheney about Cheney's own efforts to gather information on Joseph and Valerie Wilson and to question him about the curious conversations that occurred when Cheney (according to Libby) told Libby that Libby did not have to inform Cheney about Libby's full involvement in the leak episode.
The trial jurors spent three days listening to audio tapes of Libby's grand jury testimony and hearing (in Libby's own voice) what Fitzgerald has claimed to be lies. Many on the jury would probably prefer to hear directly from Libby. Yet his lawyers have concluded that the vice president's former chief of staff cannot be a strong witness in his own defense. It's his right not to testify. And defense attorneys routinely keep clients off the stand. Nevertheless, Libby's decision to remain mute and not submit himself to cross-examination is not without symbolic content.
Before Wells announced that Libby and Cheney would not testify, Libby's defense called to the stand John Hannah, who succeeded Libby as Cheney's national security adviser. And the following exchange--paraphrased because a transcript is not yet available--occurred:
Q: How would you evaluate Scooter Libby's memory?
A: On certain things, Scooter just had an awful memory. There were times too many to count when in the morning we would discuss policy issues, analyses and recommendations and then later in the day he would repeat back to me the same analyses and recommendations and have no idea I had mentioned them to him.
Libby's lawyers and his out-of-court defenders have long suggested that Libby's statements to the FBI and the grand jury were not deliberately deceptive (as Fitzgerald has charged) but merely the result of imperfect recollections held by a fellow consumed with pressing national security matters. Consequently, it was odd that when Libby's attorneys finally had the chance to present a witness who could back up this explanation, there was little punch to the memory defense. Hannah, who was one of Libby's deputies on national security issues at the time of the CIA leak, said little to support his assertion that Libby's memory was occasionally "awful" other than to depict an apparently routine scenario that made it seem like his boss was stealing his ideas.
Hannah was more persuasive on the other front: that Libby was a damn busy man. Under the careful prompting of John Cline, a Libby lawyer, Hannah described Libby's usual day when he was Cheney's Cheney. Libby had to manage a "very heavy" information flow, with memos and material coming to him from ten to twelve special advisers on national security in the vice president's office. He had several person-sized safes filled top to bottom with classified material. He had to prepare for meetings with other government officials and foreign officials; he had to prepare Cheney for meetings with other government officials and foreign officials. His work days began with an early morning intelligence briefing with Cheney and typically did not conclude until 8:00 or 9:00 at night. The job was challenging, Hannah said.
And there were so many weighty affairs of state for Libby to process. Cline walked Hannah through a list of topics previously cleared for public discussion by Judge Walton and government agencies, and he asked Hannah if each subject had been a matter of concern for Libby during the period of May 2003 to March 2004 (from when the Wilson affair started until Libby testified to the grand jury). Was Libby fretting about the proper role and size of Iraqi security forces in post-invasion Iraq and the composition of the government there? Yes, Hannah said: "It was a very important issue for us." Was he worried that the plans of the Coalition Provisional Authority in Baghdad for the buildup of the Iraqi police and security forces were insufficient? "Sounds right," Hannah replied. He noted that Libby was a "leader" in the effort to create more robust security plans for Iraq.
Libby was occupied with far more than Iraq, Hannah noted in response to Cline's questions. In June and July 2003, he was monitoring student protests in Iran and Iran's detention and possible harboring of al Qaeda suspects. Not to mention Tehran's nuclear ambitions. He was tracking developments in Israel and the Palestinian territories. Most important, he was doing what he could to defend the United States against al Qaeda and terrorist attacks involving weapons of mass destruction. Hannah said that senior administration officials, including Libby, were "concerned" that al Qaeda was developing biological weapons and pursuing nuclear weapons. Libby believed, Hannah said, that the US government's contingency plans to defend against WMD attacks were inadequate, and Libby pressed for more action. Libby, according to Hannah, was also deeply immersed in crafting the administration's responses to two foreign policy crises: the arrest of Turkish soldiers in northern Iraq and the rise of unrest in Liberia.
Libby, Hannah testified, managed all these knotty national security matters while serving as Cheney's chief of staff and handling domestic policy issues as well. After Hannah left the stand, Cline told the judge, "We want to paint a picture of a person who was overloaded, who was overwhelmed, who had a full plate."
Fitzgerald's questioning of Hannah was brief. If Cheney's integrity regarding the rationale for the Iraq war was publicly challenged, the prosecutor asked, would it have been important for Libby to respond? "It would be important to push back on those kinds" of attacks," Hannah answered. And, Fitzgerald asked, during the second week in July 2003, when Libby was burdened with the Turkey and Liberia crises and all else that Hannah had mentioned, would it have been easy for Hannah to have had a morning coffee with Libby for an hour to discuss these issues? "It would be harder," Hannah responded. It was obvious what Fitzgerald had in mind: on July 8, 2003, Libby held a morning meeting lasting over an hour with Judith Miller, during which he shared with her White House arguments to back up the administration's case for war and (according to Miller) told her that Wilson's wife worked at the CIA. In other words, Libby was not too busy protecting America from terrorists that morning to chat confidentially with a reporter who could help him and Cheney conduct damage control.
The too-swamped-with-saving-the-world argument has other problems. In his grand jury testimony, Libby described how he spent considerable time dealing with the Wilson imbroglio and the controversy concerning the administration's prewar use of the allegation that Iraq had sought uranium in Niger. And a CIA briefer testified earlier in the trial that Libby had met with actor Tom Cruise in June 2003 to discuss Germany's treatment of Scientologists. So Fitzgerald can argue that no matter how overwhelmed Libby was by the big stuff he still found time to fight back on the Wilson matter and talk about Scientology with a Hollywood star.
Closing arguments are now scheduled for Tuesday. Fitzgerald will sum up his narrow case: Libby told investigators he knew nothing certain or official about Wilson's wife at the time of the leak and only shared scuttlebutt with reporters, but the testimony of three journalists and five past and present government officials disputes that. Wells will do all he can to slice and dice the witnesses. He will likely suggest--but not prove--alternative narratives that cast Libby as a victim or bystander. He will not rely on what Libby or Cheney could have told the jury. The two apparently have not much to say that can help Libby.
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 .