ANALYSIS: Which Way Will Libby Defense Go?
Feb. 13, 2007 — -- Now that the prosecution has rested in the perjury trial of Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, the defense is at a crossroads as it begins to present its case this week.
They can continue to argue Libby's "faulty memory,"or they can go for broke with a more controversial strategy unveiled in their opening statement -- that the Administration has thrown Libby under the bus to protect key Republican strategist Karl Rove. Both are fraught with peril, but it's the second choice that poses the greatest risk of alienating the White House and eliminating the potential safety net of a Presidential pardon.
Faulty memory, while clearly the safer bet, may be a tougher sell. Special Prosecutor Patrick Fitzgerald has done a good job of nailing down the testimony of a number of key prosecution witnesses who flatly contradict Libby's grand jury testimony. But remember that the prosecution has to do more.
In order to gain a conviction the government has to prove not only that Libby's statements were false, but also that his false statements were made knowingly; that is, that he intended to lie to investigators.
Fitzgerald has built his case by first presenting a series of witnesses who contradicted Libby's statements, and next showing that the false statements were of such significance that it is highly unlikely that Libby could have innocently misremembered the earlier conversations.
For example, Ari Fleischer, the former White House press secretary, testified that it was Libby who told him that former Ambassador Joseph Wilson's wife, Valerie Plame, worked for the CIA and that he was to treat the information as "hush hush." Fleischer stated that he remembers the event clearly because Libby told him over the only lunch the two ever had together.
Similarly, while Libby testified in the grand jury that he first learned of Plame's identity from NBC 's Washington Bureau Chief Tim Russert, Russert testified at trial that Libby couldn't possibly have learned this from him since he didn't learn Plame's identity himself until the following week.
This type of compelling testimony leaves the Libby defense team in a bit of a quandry. They can continue to hammer away at the credibility of the government's witnesses -- an array of former and current White House officials and Washington press corp elite -- or they can take the case right to the prosecution.
If they opt for this approach, the defense will try to argue that neither Libby, nor anybody else, was ever charged with the crime that Fitzgerald was initially empowered to investigate -- the leaking of Plame's covert status to columnist Robert Novak. They can point out that Libby was not the actual leaker; we now know that former Deputy Secretary of State Richard Armitage gave Novak the information. Nor was Libby the real target of the investigation; we now know it was Rove.
In painting him as the Administration's scapegoat, Libby's lawyers just may convince the jury that even if Libby didn't tell the whole truth, they nonetheless ought to acquit since he was simply following the directives of others and has been essentially hung out to dry by an Administration seeking to protect Rove. Indeed, a note penned by Cheney almost admits as much.
If this defense works, Libby's defense team will be hailed for their genius, but if it fails Libby may forever foreclose the possibility of a presidential pardon.
In responding to a prosecution that was rife with political overtones from the start, it's now the defense that has to gauge the political fallout from this gambit. While Libby has long been admired as a shrewd political operative, he is likely now faced with the biggest political call of his life.
Robert A. Mintz, a former federal prosecutor, now heads the Securities Litigation and White Collar Criminal Defense Practice at McCarter and English, LLP. He was an ABC News legal analyst during the Martha Stewart trial.