'Scooter' Libby in Court: The Trial That Did Not Have to Happen

Jan. 15, 2007— -- When Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, was indicted more than a year ago, the public was still largely supportive of the war in Iraq and Libby was still believed by many to be the source of the leak that outed former CIA operative Valerie Plame.

Now, as opening arguments are set to begin in the Libby trial, the climate has changed both inside and outside the courtroom. On the one hand, we now know that the real source of the leak to columnist Robert Novak was not Libby at all, but former Deputy Secretary of State Richard Armitage.

On the other, public sentiment has turned dramatically against the Iraq War, and those who sympathized with Plame and her husband, former U.S. Ambassador Joseph Wilson, likely feel somewhat vindicated. While criminal prosecutions are never supposed to be about politics, this one was infused with political considerations from the start.

First, let's remember what this case is not about. Special Prosecutor Patrick Fitzgerald did not allege that Libby broke the law by leaking Plame's name in retaliation for her husband's public criticism of the way the administration used prewar intelligence to justify the war in Iraq.

He did not charge that Libby participated in a conspiracy to disclose classified information in an effort to discredit Wilson. And he did not charge that Libby knew that Plame was in covert status when he disclosed her identity to three reporters.

In short, the indictment makes no mention, and Fitzgerald publicly acknowledged reaching no conclusions, about any of the central issues that formed the focus of his two-year investigation.

Robert A. Mintz, a former federal prosecutor, was an ABC News legal analyst during the Martha Stewart trial. He heads the Securities Litigation and White Collar Criminal Defense practice at McCarter and English, LLP.