On Tuesday, I observed the closing arguments at the federal courthouse in Washington in the case of United States v. I. Lewis Libby. The prosecution’s systematic presentation of the evidence supporting the five-count indictment of perjury and obstruction of justice did not foreshadow the dramatic accusation about Vice President Dick Cheney that was to come at the day’s end. “This case is about lying,” deputy prosecutor Peter Zeidenberg dryly began. It was, he explained, about how Scooter Libby learned that former ambassador Joseph Wilson’s wife, Valerie Plame, was a covert CIA operative, and about whom Libby spoke with about the revelation and what he said.
The defense, for its part, appealed to the jurors’ empathy for what it characterized as Libby’s bad memory, called the prosecutors “mad,” conjured up the defendant’s two young children for sympathy, and described him as a decent man diligently doing his job despite being surrounded by the chaos of an administration in which he was indispensable but for whose actions he apparently bore no responsibility.
Finally, hour after hour, the defense attacked not only the credibility of the journalists who had been witnesses but also the very notion that journalism itself has to do with representing the truth. After journalists, one after another, were held up to derision as clownish boobs and blamed for Libby’s predicament, the defense appealed to the jury’s common sense to dismiss the craft of journalism as false by nature, always to be discredited, and on that basis to find Libby not guilty. On one level, the final argument on behalf of Scooter Libby was Libby’s last disinformation campaign. On another, it was a summation of the Republican hostility toward the press, as official an imprimatur as Richard Nixon’s malevolent enemies list or George H.W. Bush’s sophomoric 1992 campaign slogan: “Annoy the Liberal Media.”
The prosecution and the defense appeared before the jury with more than two contending accounts of the Libby story. Indeed, the defense did little if anything to counter the prosecution. Poor Libby’s errors were just attributable to his bad memory. While the prosecution operated on the plane of reason, the defense retreated to high emotion. Libby’s case began with accusations of a dark plot within the White House to feed Libby to the wolves to save the skin of Karl Rove — a conspiracy that was never mentioned during the trial — and ended in tears with the sudden and choked sobbing of defense attorney Theodore Wells.
“Did you ever hear any evidence about a conspiracy to scapegoat Mr. Libby? It’s not a problem with your memory,” Zeidenberg said. The case, he went on, is not about “scapegoating, conspiracies or bad memory.” With business-like swiftness, he detailed how Libby conveniently forgot nine conversations with eight individuals about Plame and fabricated out of whole cloth two conversations with two reporters. Names, dates and places were cited, all supported by the evidence. Libby’s memory failed him on what had happened, but worked on what hadn’t.
Zeidenberg ran through the narrative of the loyal Libby, doing the bidding of his principal, Vice President Dick Cheney, who was angered at Wilson’s public revelations concerning the falsehoods about the justification for the invasion of Iraq, a CIA mission set in motion by Cheney’s own inquiries, which particularly enraged him. Cheney tasked Libby to learn about Wilson’s wife, the CIA operative, so that Wilson’s trip to Niger could be traced to her and not to Cheney’s initial request to dig up information about Saddam Hussein’s seeking yellowcake uranium for nuclear weapons.
Libby tapped government official after official, Marc Grossman at the State Department and Robert Grenier at the CIA, from whom he demanded information on Plame. The officials each testified at the trial, vividly recalling his unusual questioning; but Libby remembered nothing about them in his grand jury testimony. Nor did Libby remember his conversations about Plame with Cheney’s communications aide, Cathie Martin, or his CIA briefer, Craig Schmall, who also remembered the conversations well. Nor did Libby remember his conversations with Judith Miller, the New York Times correspondent, to whom he leaked Plame’s name and an exclusive story about the contents of the National Intelligence Estimate on Iraq. President Bush had declassified the NIE at the insistence of Cheney; the only other person aware of the declassification was Libby — not then National Security Advisor Condoleezza Rice or her deputy, Stephen Hadley. But Libby did not remember it. Libby did not remember his conversation with White House press secretary Ari Fleischer, which was “hush-hush” and “on the Q.T.,” he said, divulging Plame’s identity to him. Nor did he remember his conversation with David Addington, Cheney’s counsel, Libby’s Libby, telling Addington to keep his voice down behind a closed door as Libby asked him about Wilson’s spouse sending him on his mission.
But Libby remembered conversations with Tim Russert, the host of NBC’s “Meet the Press,” and Matthew Cooper, former correspondent for Time magazine. Zeidenberg played tape recordings of Libby’s grand jury testimony in which Libby recalls precisely all the words that Russert and Cooper say were never uttered. On the tapes, Libby blames the reporters. “All I had was information coming from reporters … all I had was reporters telling us that … I didn’t know he had a wife … I told a couple of reporters what reporters told us.”
Libby’s invented conversations, putting the onus of revealing Plame’s identity on reporters, disclosed the broad attitude of the Bush White House toward the press. Having used reporters to plant false stories in the run-up to the war, Libby believed he could hide behind them. They tell so many stories, their habits are not always perfect, they get things wrong as they labor to get them right, they inhabit an inferno of petty envies about their fellow reporters, and they might never tell. They would not tell and if they did, ultimately, who would believe them? Who would find his way through the wilderness of the Washington press corps?
But Libby knew what he did, Zeidenberg explained. He feared he might be found out. The FBI came to his door. If he told the truth he would implicate the vice president in a smear campaign against a critic and give credence to Wilson’s statements that the administration had led the country into war on a falsehood. But if Libby blamed the reporters, Libby’s — and Cheney’s — actions would seem “innocuous,” said Zeidenberg. “He decided to lie.” With that, the first part of the prosecution summation concluded.
Libby’s attorney, Wells, strode before the jury and used his precious opening minutes to denounce Zeidenberg for a “personal attack,” namely, Zeidenberg’s reference to Wells’ failure to develop the White House conspiracy he claimed at the start of the trial was the center of his defense. “Maybe I was drunk when I made my opening,” said Wells. He described Libby as a sheer victim, using language that evoked the image of an abused prisoner: “They get Mr. Libby in the grand jury and start beating on him.” Who can blame a beaten man for what he might blurt out? The prosecution, said Wells, was “madness.”
Wells concocted a fantasy of how Russert, who testified that he did not tell Libby about Plame, might have done so even though there was no evidence whatsoever to prove it. Wells spun a tale about Robert Novak’s infamous column of July 14, 2003, revealing Plame’s identity, observing that it was distributed to various news outlets that subscribe to Novak’s column through the Associated Press wire on July 11. “Maybe,” said Wells, Russert read the column on the AP wire, misremembered the date and misremembered the entire conversation. “Maybe all that happened … Maybe he’s confused.” Maybe Wells was trying to sow confusion.
How could Libby be expected to remember? “He didn’t get to lay [sic] on a beach. He didn’t get to see his wife and family. He was working on important issues.” Wells looked up. “How much time do I have?” He had squandered too much of it defending his nonexistent conspiracy-mongering. Quickly, he shifted back to Russert. Russert isn’t necessarily a liar, but what he says is “impossible.” The jury “can’t rely on him.” Russert has “memory problems.” He ridiculed Russert: “I don’t recall! I don’t recall! I don’t recall!” He called NBC “not a friendly network … It was Wilson’s home spot!”
Wells tried new fantasies. He admitted that Libby “got things wrong in the grand jury.” He was “confused.” So: “Maybe Libby did nothing more than confuse Novak with Russert.” And: “Maybe he got Cooper confused with Russert.” It’s “impossible” to show that Libby engaged in “intentional lies.”
After a lunch break, Wells’ co-counsel, William Jeffress, less bombastic and more conversational but no less conjectural, took over. After making conventional defenses about memory, he launched into an assault on journalists and journalism. “You can’t take anything in these newspaper articles as true,” he said. “Maybe some journalists wish you could. But you can’t.” This extraordinary defense — that nothing in any newspaper can be considered true — was the reductio ad absurdum of the Bush administration’s use and abuse of the press corps. Having manipulated it to plant stories on weapons of mass destruction to legitimize the Iraq war, Libby, who was centrally involved in those disinformation efforts, was reduced to defending himself on the basis that newspapers cannot be trusted to publish the truth.
On the screen mounted inside the courtroom, Jeffress introduced Libby’s Exhibit A for mistrusting the press: Miller, the reporter who was the chief repository of the administration’s leaks on WMD and to whom Libby leaked Plame’s identity. Videotapes unreeled of Miller recollecting that she could not remember certain things, speaking nervously, disjointedly and carelessly, and contradicting herself. “It’s really easy to forget about a story you’re not writing,” she said. “She’s got a bit of a memory problem,” Jeffress said, stifling a snicker. “Judith Miller is not a reliable witness.” If Miller is flaky, Libby must be innocent.
Like Wells, Jeffress leapt into the unknown, inventing scenarios and testimony and inviting the jury to suspend their disbelief. He projected a completely garbled line from Cooper’s reporter’s notebook and filled in phrases to make it appear almost word for word to be congruent with Libby’s testimony that he supposedly told Cooper he had heard about Plame from reporters and didn’t know if it was true, even though Cooper testified that Libby had said no such thing. “Libby got it right!” proclaimed Jeffress triumphantly about his fictionalization. He turned to the jury and urged its members to acquit: “You’re not journalists!”
Wells had less than an hour to finish for the defense. Libby, he said, “didn’t leak to anybody.” Miller is not “anybody.” “The only person,” said Wells, “is Miller, and I don’t think it happened … Judith Miller has bad information … He didn’t leak to anybody.” Moreover, Wilson’s “wife was not important to Scooter Libby.” Libby received briefings on terrorism “that make your toes curl … Give him the benefit of the doubt.” Though he “got things wrong in the grand jury … it’s unfair to expect him to remember exact words.”
Wells, a 6-foot-2-inch African-American, approached the jury members, standing directly in front of them, and urged them to help each other avoid prejudice. “If someone says, ‘He’s a Republican, he worked for Cheney, let’s just do him,’ help that person. Don’t sacrifice Scooter Libby for how you may feel about the war in Iraq or Bush administration. Treat him the way he deserves to be treated … Fight any temptation for your views if you’re a Democrat, whatever party. This is a man who has a wife and kids. He’s been under my protection for the last month. Just give him back.” Wells’ voice cracked and he spoke his final words through sobs. “Give him back to me! Give him back!” He rushed back to his chair at the head of the defense table, covered his face and then stared at the floor.
At last, it was the turn of Patrick Fitzgerald, the special prosecutor. “Madness! Madness!” he shouted, waving his arms. “Outrageous! The government has brought a case about two witnesses, two phone calls. And they just want you to speculate. The defense wishes that were so. Saying it loudly, pounding the table, doesn’t change the facts. Let’s talk about the facts. Let’s get busy.”
“It’s not he said, she said,” Fitzgerald declared. On the courtroom screen appeared the eight people with whom Libby had discussed Plame nine times. “It’s he said, he said, he said, she said, she said, she said, he said, he said. Is this the greatest coincidence in the world?”
“One of the myths is that Wilson’s wife is not important.” For Cheney and Libby “she wasn’t a person. She was an argument. She was a fact to use against Wilson.”
The defense left virtually untouched the many witnesses corroborating that Libby sought Plame’s identity and spread it. Now Fitzgerald reviewed their unimpeached testimony. Point by point, Fitzgerald deconstructed Cathie Martin’s talking points dictated by Cheney, getting down to the irreducible nub of Cheney’s obsession, handwritten on a copy of Wilson’s New York Times Op-Ed article: “Or did his wife send him on a junket?”
Speaking rapidly in order to fit all his facts into the hour allotted to him, Fitzgerald did not slow his clipped delivery as he came to the most dramatic statement of the trial. “You just think it’s coincidence that Cheney was writing this?” he asked rhetorically, before answering his own question. “There is a cloud over the vice president. He wrote on those columns. He had those meetings. He sent Libby off to the meeting with Judith Miller where Plame was discussed. That cloud remains because the defendant obstructed justice. That cloud is there. That cloud is something that we just can’t pretend isn’t there.”
“That cloud” was like the sudden appearance of a thunderhead over the proceedings and the administration. In no uncertain terms, in his most public statement, Fitzgerald made clear that he believed that Cheney was the one behind the crime for which he was prosecuting Libby. It was Cheney who was the boss, Cheney who gave the orders, and Cheney to whom Libby was the loyal soldier, and it is Cheney for whom Libby is covering up.
There was more: Fitzgerald on why Cooper was credible and Russert was “a devastating witness,” and Libby remembering “Rove’s conversation with Novak better than Novak.” More: The uniqueness with which the witnesses recalled their conversations with Libby on Plame. And more: The importance of the Wilson matter to him and Cheney. Yet more: Witness after witness recalling Libby’s anger, irritation and agitation. “We all know, when you’re angry at someone, you remember … He was angry about Wilson. What Wilson said is that the country got lied into war. One of the people he blamed was the defendant — and the vice president.”
For his final words, Fitzgerald transformed Wells’ lachrymose closing (“Give him back to me!”) into a challenge about the truth and the rule of law. “He stole the truth from the judicial system,” Fitzgerald told the jury. “If you return a guilty verdict, you give the truth back.” Thus the closing statements ended, first with a whimper and then with a bang.
On Wednesday Judge Reggie Walton gave his instructions to the jury, and it is now deliberating.