The Libby Verdict: What's at Stake?

Feb. 20, 2007 — -- With the trial of Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, set to go to the jury this week, the stakes are enormously high for both the defense and the prosecution.

For Libby, the risk is obvious: his freedom is on the line. A conviction would almost assuredly send him to jail for at least some period of time and cast a dark cloud over a distinguished career in public service.

But the prosecution has a lot to lose as well. Special Prosecutor Patrick Fitzgerald has come under fire for running roughshod over First Amendment values by forcing journalists to divulge confidential sources during the investigation, but never charging anyone with the underlying crime of leaking the identity of former CIA operative Valerie Plame.

An acquittal would be a complete repudiation of Fitzgerald's lengthy investigation and call into question the wisdom of bringing these charges in the first place.

The Bush administration is also on trial in a sense. If Libby is convicted, it will likely be as much an indictment of the White House's handling of the Plame affair as of Libby himself.

While the judge will instruct jurors to deliberate solely on the question of whether Libby knowingly misled investigators when he testified before the grand jury, jurors will likely speculate whether there may have been something illegal in the way the White House responded to the criticism of Plame's husband, former ambassador Joseph Wilson, as the administration made its case for war in Iraq.

Although the government is not required to prove motive, motive goes to the question of intent.

In other words, in trying to determine whether Libby intentionally lied, rather than innocently misremembered, jurors are entitled to consider whether he had a reason to tell a lie.

If Libby believed he was involved in an illegal conspiracy, that makes it more likely that his misstatement was intentional.

In that sense, a conviction not only sends a message to Libby, but also to Cheney for his role in attempting to discredit Wilson.

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