We're waiting to see whether the ice sheet blanketing DC prevents the trial from restarting at 11:30 today--Libby's team is supposed to complete their defense. The defense was short--really short. But to counter a lot of the claims that Libby didn't do anything in his defense, I'd like to lay out what they have done. For a review of the charges that might serve as useful background to this discussion, see these three posts: charges relating to Cooper, charges relating to Russert, obstruction charge.
So here's what Libby has tried to do to beat these charges:
The Libby Headfake and Greymail
Libby knew what he was doing when he hired John Cline, who IMO has been the most impressive lawyer for the defense. Cline, of course, is a noted greymail specialist--which means he digs up a truckload of classified documents, claims the defendants needs them to mount a defense, then makes it very hard for the government to come up with substitutions for classified information in the documents, thereby forcing the government to back off its case.
They had to go through some hoops to make this attempt work. Since Fitzgerald had scoped the charges so narrowly--perjury rather than IIPA--there wasn't much classified information directly related to the charges (unless you count the multiple notes that Cheney's office had stamped with "treated as Top Secret/SCI." So they created a ruse to be able to claim there was a lot of pertinent information.
The ruse was to say that Libby would testify, that he would claim he was so busy doing Very Important Things that he just forgot that he had outed a CIA agent. Cline argued that Libby would need all these documents--including VP daily briefings, which BushCo guards like the crown jewels--to explain to the jury what his state of mind was when he forgot leaking Plame's identity.
It is my opinion they never intended to put Libby on the stand--there are just too many lies he told in the grand jury that Fitzgerald could pursue if he were on the stand. But by saying Libby would testify, Team Libby got many more classified documents than they otherwise would have. The whole ploy almost worked--the greymail was their best attempt. But, alas for Libby, the CIA pulled through with substitutions and we actually got a trial.
The Cheney Headfake and Voir Dire
Early in the discovery phase of this case, Team Libby talked as if arguing the Iraq war would help their case. It was Fitzgerald, and not Libby, who fought to keep the war out of the trial. But somewhere around about November 7, it became clear that Libby couldn't win on the war (no one is winning on this war). So they pulled another headfake to make sure they got a jury that included almost no one from the majority of the country that thinks this war is a terrible mess. They said that Dick Cheney was going to testify. That gave them the opportunity to ask every potential juror whether they could take Cheney seriously. And an easy way to identify the people who would never take anything this administration believed at face value.
It is my opinion that they never intended to put Cheney on the stand. We saw plenty in the evidence submitted in the trial to show that there was almost no way they could scope a Cheney appearance and not put him at risk for perjury or worse. Furthermore, the evidence shows Cheney was even more obsessively involved in this than I believed. There was no way The
Neocon Scooter Libby Defense Fund was going to expose Cheney in that way. But by saying Cheney would testify, they got to ensure they'd get a jury that was unusually neutral about the administration.
The Materiality Defense
The Libby team also went to great effort to argue that when Libby was first interviewed in the case in October and November 2003, the case related exclusively to the leak to Novak. And so, they argued (and probably will argue again on Tuesday), the lies that Libby told about Cooper, Judy, and Russert were not material to the investigation, and therefore not chargeable.
Fitzgerald clearly saw this coming. They spent a lot of time showing that document requests and the like always requested more than just Novak documents. But given that many in the press still believe this case was all about Novak, who knows--this might succeed (note, I think only the two false statement charges are related to this question of materiality).
The Judy Headfake
I'm not sure I entirely understand this one, since it all went down the week I was gone. But here's what happened. The indictment is clear: the only lying charge related specifically to Judy was the second perjury count, the one relating to Matt Cooper, in which Libby said he told Cooper and other journalists that he didn't know if Plame really worked at the CIA. But somewhere along the way, the lies Libby allegedly told about Judy on July 12 somehow got treated as a charge unto themselves. And somewhere between Fitzgerald's questioning and Judy's answers, there was no sufficient detail about that conversation to merit the mention unto itself. Libby's team argued, successfully, that this part of the charge had to be thrown out.
Now, I think this just means that the jury can't consider anything about the July 12 Judy conversation in their considerations of whether Libby lied. But the real use this serves Libby's team, IMO, is that it allows them to make a big show of saying that Judy doesn't count.
Understand, the obstruction charge is about a lot of things. But it's basically about Libby hiding the conversations with Judy, because he clearly leaked information that, evidence suggests, he knew was classified.The Judy conversations are what tie Cheney informing Libby of Plame's identity to the leak. So in many ways, the Judy conversations are what the obstruction charge alleges Libby was hiding. By making a big show of saying Judy doesn't matter, Libby's team is going to try to confuse the jury about whether the June 23 and July 8 conversations do matter.
There was a good deal of wrangling about this, so I don't know how much the jury will see and hear about Judy's irrelevance. But it is a way the defense plans on confusing the jury into believing there was no obstruction.
The Memory Defense
Ah, the memory defense. It really needs no explanation. But I'll just say that this is--and I think the defense considers it--one of the weakest parts of their defense. Ari and Judy have their credibility issues, but they have come off as sufficiently credible to make his "learned it on Thursday after leaking it on Monday and Tuesday" story look like total BS.
The Very Important Man Defense
Rather than the memory defense, I think they're relying, instead, on the Very Important Man defense, the notion that Scooter was such an important man that he should be excused for leaking a spy's name. Oh, and did I mention terror terror terror? Given some of the cynical comments coming from the jurors--particularly yesterday's question whether, since Libby was so forgetful, is it possible he wasn't very effective on his [Very Important] job?--that I don't think the jurors are wowed by this shit.
Throwing Rove Under the Bus
This concept of course relates to Wells' opening statement, where he said that the whole prosecution of Libby came because the White House sacrificed Libby to save Rove. I think this was done for two reasons--to explain away a pretty damning note in which Cheney got personally involved in forcing Scottie to public exonerate Libby. But I also think it relates to an attempt at jury nullification.
Throughout this trial, Wells has stated that Armitage and Rove were the leakers, in spite of the fact that Libby, too, had a conversation with Novak in plenty of time to leak Plame's identity and in spite of the fact that Libby clearly did his share of leaking. In dealing with Ari, Jeffress clearly suggested that Ari should be charged with perjury for not admitting that Pincus is his source. Fitzgerald has charged that this is an attempt at jury nullification. That is, he is suggesting (and it's a very serious charge) that Team Libby is trying to get the jury to believe that it was wrong for Libby to be charged and that, in spite of all the instructions they will get about the seriousness of obstruction and lying, he should not be found guilty. Fitzgerald is suggesting that Wells is planting the notion that, since Armitage is the big leaker, Libby shouldn't go to jail. Or that, since Ari didn't face charges, neither should Libby.
IMO, there is a big risk this will be successful. I have no idea what Wells will say in his closing statements, but he's sure to bring up Armitage and Rove and Ari again. Add in Wells' statement that "the only way my client is found guilty is if you violate your oath," and I think Fitzgerald's harsh charge is totally fair. Wells appears to want the jury to find Libby innocent because of all the bright shiny objects out there. After all, they only need to pick off one juror.
The Impending Appeal
And finally there is the all the careful work Libby's team has made to ensure they'll be able to appeal. After all, Wells has already said, "we'll probably be arguing this after the trial." Which sure sounded like a concession that he will lose at least some of the counts, and will thereafter appeal the verdicts. He has promised to appeal decisions about Andrea Mitchell, Russert, newspaper articles and more. Presumably all he has to do, after all, is stall for 2 years until the pardon. Right?