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.
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