Libby's cynical defense

In the courtroom, I watched Libby's lawyers grill Bob Woodward and Robert Novak, trying and failing to obscure the charges against the vice president's man.

Editor's note: This article has been changed since it was first published.

By Sidney Blumenthal

Read more: Politics, Sidney Blumenthal, Bob Woodward, CIA, Tim Russert, Opinion, Karl Rove, Dick Cheney, Ari Fleischer, Judith Miller, Joseph Wilson, Valerie Plame, Patrick Fitzgerald, Scooter Libby

AP Photo/Dana Verkouteren

In this artist's rendering, members of the jury, left, are dressed in red on Valentine's Day as Judge Reggie Walton, center, and I. Lewis Libby, right, look on, Feb. 14, 2007.

Feb. 15, 2007 | Throughout the anxious months before the trial of United States v. I. Lewis Libby, one of Scooter Libby's old mentors, a prominent Washington attorney and Republican with experience going back to the Watergate scandal and with intimate ties to neoconservatives, implored him repeatedly to stop covering up for Vice President Cheney and to cut a deal with the special prosecutor. Yet another distinguished Washington lawyer and personal friend of Libby's, privy to the mentor's counsel, reinforced his urgent advice and offered to provide Libby with introductions to former prosecutors who might help guide him. But Libby rebuffed them. He refused to listen. He insisted on the trial.

This Tuesday, Theodore Wells, Libby's chief defense lawyer, abruptly announced that neither Cheney nor Libby would testify on his behalf. In effect, the defense was resting. Did his own lawyers mistrust Libby on the stand? Would he lie and prompt another count of indictment? Would Cheney, indisputably the director of the campaign against former ambassador Joseph Wilson, be stepping into a perjury trap or open the door to conspiracy charges implicit from the beginning? Those questions, along with their testimony, remain moot.

According to prosecutor Patrick Fitzgerald, Libby's case amounts to an attempt at "jury nullification." Libby is charged with five counts of perjury and obstruction of justice for lying about where he learned the identity of CIA undercover operative Valerie Plame (Wilson's wife) and to whom he spread that information. Fitzgerald presented two government officials, former CIA officer Robert Grenier and State Department official Marc Grossman, who swore they were the first to inform Libby. Libby was in pursuit of that information, Fitzgerald further revealed through testimony from past and present Bush administration officials, because the vice president had tasked him to find and spread it. And Libby also passed on the information to Ari Fleischer, the White House press secretary, to get him to pass it on to the press. Two reporters, Matt Cooper (then at Time magazine) and Judith Miller (then at the New York Times), testified that Libby had conveyed to them the information about Plame. NBC's Tim Russert testified that he did not first inform Libby about her, as Libby had told the grand jury. Fitzgerald's prosecution was well honed, unadorned and a straight arrow.

Libby's defense was the legal equivalent of the fog of war. He sought to obfuscate the clarity of the prosecution's case by raising irrelevant issues, turning the jury's attention away from the charges themselves and creating doubt by getting witnesses to admit small lapses of memory, thereby underlining Libby's memory defense. So Libby's lawyers highlighted Cooper's incomplete note taking, whether Miller raised the issue of writing a piece based on Libby's information, and whether Russert followed strict journalistic protocol when he spoke freely to the FBI. Libby's team also summoned a parade of reporters to relate that Libby had not dropped Plame's name with them. By demonstrating a negative, Libby sought to dispute a positive. The intent to sow confusion among the jurors in order to raise a shadow of a doubt and produce an acquittal partly depended on their ignorance of Washington anthropology.

Fitzgerald's case elicited significant evidence of the planned and concerted attack on Wilson. Libby, along with a host of other White House aides, leaked Plame's secret identity to reporters. The methods of communications strategy were disclosed in the testimony of Cathie Martin, Cheney's deputy P.R. aide, who explained the art of talking points, and of Fleischer, among others. "It was decided that Scooter would call [reporters] to try to get into the story and correct the false information," Martin said. "That was [Cheney's] decision." Trial exhibits included the notes of Cheney's former communications advisor, Mary Matalin, who suggested that Libby call Russert to complain about MSNBC "Hardball" host Chris Matthews: "Tim hates Chris." Martin expressed awe of Matalin's skills, but Matalin's Heather-like remarks illuminated Republican Washington as "High School Confidential."

On Monday, I sat in the courtroom as the dapper, slightly built Libby took his place at the defense table, half smiling at his half-dozen attorneys while occasionally flicking his head to the side, betraying a wary glance. In the bench behind him sat his wife, Harriet Grant (herself a lawyer), and Barbara Comstock, a conservative operative hired as a P.R. specialist, playing with her BlackBerry during the testimony and chewing gum. The jurors marched to their seats were impassive; it was impossible to read anything from their immobile faces.

On that day, the busiest for the defense, the witnesses flew through the courtroom with speed. Every one called by the defense was a reporter whose presence was intended to contribute to the confusion of the jury and direct their gaze away from the actual charges. Walter Pincus of the Washington Post was the first one in the stand. He revealed that he had spoken with Libby but that it was Fleischer who disclosed to him Plame's name, as though that somehow proved exculpatory. Of course, it was Libby who told Fleischer about Plame -- "hush, hush" and "on the Q.T." Pincus is the reporter in the run-up to the invasion of Iraq who persistently wrote skeptical stories on administration claims about Saddam Hussein's possession of weapons of mass destruction. Those stories were typically buried, earning Pincus the sobriquet among his friends of Walter "A-14" Pincus.

Fleischer told Pincus about Plame as a consequence of Pincus' diligence as he sought to get to the bottom of the Wilson smear. It was Pincus who called Fleischer. Pincus was not necessarily the person whom Libby himself would trust to leak to himself. Pincus was known within the White House as a skeptic of its disinformation and as a reporter with many independent sources in the intelligence community, which the neoconservatives regarded as an adversary. Pincus was not the sort of reporter whom Libby would provide with this "hush, hush" information. But if Fleischer did so, it was a different matter. In any case, Pincus did not publish Plame's name. Unlike Bob Novak, he had compunctions about the sensitivity of exposing a CIA operative.

Next page: Leaking to Woodward was pointless if one wanted to get a story published immediately