Tuesday, February 20, 2007

Libby Trial: Final Arugments for Scooter, Cheney & the Truth

From my "Capital Games" column at www.thenation.com....

Cover-up or scapegoating.

Nine conversations or two.

Scooter Libby the liar, or Karl Rove the liar.

A cloud unfairly placed over Dick Cheney, or Libby and Cheney placing a cloud over the White House.

As the prosecution and the defense teams in the perjury trial of I. Lewis "Scooter" Libby presented closing arguments on Tuesday, each side tried to encapsulate its case--and portrayed distinctly opposing views of reality.

"This case was about lying," prosecutor Peter Zeidenberg said at the start of the government's summation. He maintained that during the CIA leak investigation Libby, the former chief of staff for Vice President Cheney, lied to the FBI and grand jury about how he had learned that Valerie Wilson was a CIA employee, whom he had talked to about her, and what he had told others about former Ambassador Joseph Wilson's wife. Referring to the opening argument of lead defense attorney Ted Wells, Zeidenberg pointed out that Team Libby had contended their client was an innocent man who had been turned into a sacrificial lamb by a White House desperate to protect Karl Rove, the administration's uber-strategist. But, he continued, Libby's lawyers introduced no evidence to support that flashy charge. "Unfulfilled promises from counsel," he added, "do not constitute evidence."

Zeidenberg asked the jurors to recall that nine witnesses had each said they had spoken to Libby about Wilson's wife and her CIA connection In June and July 2003. They contradicted the tale that Libby had told the FBI and the grand jury. In his FBI interviews and grand jury appearances, Libby had conceded that around June 11, 2003, Cheney told him that Wilson's wife worked at the CIA's Counterproliferation Division (which is part of clandestine operations directorate). But he claimed that he had been struck by total amnesia regarding this critical fact in the following weeks and learned about Valerie Wilson's CIA employment "anew" on July 11--three days before the leak appeared in a Robert Novak column--when NBC News' Tim Russert told him that "all the reporters" knew Wilson's wife was CIA. In Libby's account, when he had talked to reporters about Wilson's wife prior to the leak he had merely been passing along gossip (not official and classified information) he had picked up from Russert. (Russert testified he had said no such thing to Libby.)

This was nothing but a cover story, Zeidenberg charged: when Libby was questioned by the FBI in October 2003, he had reason to fear being caught up in the criminal investigation and to worry about losing his job. The prosecutor reviewed for the jurors the conversations Libby had during the relevant time period. Undersecretary of State Marc Grossman, senior CIA officer Robert Grenier, CIA briefer Craig Schmall, Cheney press spokesperson Cathie Martin--each testified he or she had talked to Libby about Wilson's wife in mid-June, within days of when Cheney had told Libby about Wilson's wife. Zeidenberg reminded the jurors that former White House press secretary Ari Fleischer testified Libby told him about Wilson's wife on July 7, 2003, and that Matt Cooper, formerly of Time and Judith Miller, formerly of The New York Times, testified that Libby had spoken to them about Wilson's wife and her CIA employment prior to the leak.

The defense had taken shots at several of the prosecution witnesses, and Zeidenberg did his best to bolster their credibility. None, he argued, had reason to lie, and their accounts all pointed in the same direction. Could they all be lying or misremembering in a similar fashion? When Russert had been on the witness stand, Wells had accused him and NBC News of harboring a bias against Libby and the office of the vice president. Then why, Zeidenberg asked the jurors, did Cathie Martin testify that she had suggested that Cheney appear on Russert's Meet the Press in July 2003 to combat charges the White House had misrepresented the prewar intelligence?

Zeidenberg took on the defense's claim that Libby had been too busy with national security matters in 2003 and 2004 to remember accurately what he had known and said about Valerie Wilson. Listen to this, Zeidenberg told the jurors, and he played a portion of Libby's March 2004 grand jury testimony during which Libby was able to recall in detail a conversation he had with Rove on July 11, 2003. In that discussion, according to Libby, Rove told him that Novak had informed Rove that Wilson's wife worked at the CIA and that he (Novak) would be publishing a column about Wilson. Libby also told the grand jury that during this conversation he said to Rove that he had just heard from Russert about Wilson's wife.
(Oddly--or not--the defense never called Rove as a witness to confirm Libby's claim that he had given Rove the same account of his Russert conversation that he had provided the FBI and grand jury.) Why could Libby, Zeidenberg asked rhetorically, recount specifics of this discussion but couldn't "recall one out of nine conversations that he himself had about Mr. Wilson's wife because it is a trivial detail?" There is a pattern, Zeidenberg added: Libby remembers the conversations he had with the government witnesses but never "the piece about Mr. Wilson's wife."

Libby, he argued, could even "remember with specificity what he didn't talk about" the week before the leak. When Libby appeared before the grand jury, he testified that in the days after Joe Wilson published a July 6, 2003, op-ed article--in which Wilson revealed that he had gone to Niger for the CIA to check if Iraq had been uranium-shopping there and reported back the charge was highly unlikely--he and Cheney talked about Wilson's mission. But Libby maintained that Cheney and he had not discussed the wife's CIA position until after the leak appeared in the Novak column. Zeidenberg reminded the jurors that Cheney had written a series of questions on a copy of the Wilson op-ed, including one asking whether Wilson's wife had sent him on a junket? "Ask yourself: the vice president has those questions," Zeidenberg said, "who is he going to discuss them with? Is he pondering these things on his own? Or discussing them with his chief of staff?" And is there nothing suspicious, he added, that Libby told the grand jury that he and Cheney in the week before the leak discussed all of Cheney's questions about the Wilson trip except the one about Wilson's wife?

The case has pitted Libby (and his claimed recollections) against several reporters (and their claimed recollections). And Libby's lawyers tried to knock down the testimony from Cooper, Miller and Russert. But Zeidenberg emphasized the core issue: could Libby have completely forgotten about her CIA connection and then learned it "anew." Addressing the jurors, Zeidenberg said, "Forget for the moment about the testimony of those nine conversations...it's simply not credible to believe that he would have forgotten this information about Wilson's wife from June 11 to July 11.....The vice president's office [at this time] is in the hot seat...They're asked the question over and over: why did Mr. Wilson say he was sent [on his Niger trip] by the vice president....Mr. Libby thinks he has an answer: the wife....And he wants you to believe...that he so completely forgets the information about Mr. Wilson's wife that when Russert tells him about it...it rings no bell?...It's just not credible."

Zeidenberg's summation of the case was straightforward and compact. He poked at Libby's hard-to-accept position: I knew, I forgot, then I knew again but forgot that I had forgotten. He explained there was a motive for Libby to lie to the FBI and the grand jury. It was a coherent tale about a fellow who tried to fib his way out of a tough spot. Perjury cases can be difficult because the prosecution has to prove the defendant's intention and state of knowledge. Special counsel Patrick Fitzgerald and Zeidenberg argued a hard case well.

"Maybe I was drunk when I made my opening," Ted Wells said, as he began his closing statement. He was referring to Zeidenberg's characterization of his opening presentation: "Sure sounded like I said a lot of things I could not deliver on." Wells claimed he had not promised to put on "a whole case of evidence" about a White House conspiracy to sacrifice Libby for Rove. "I promised I would show you a note," he said. And Wells pointed to a note written by Cheney in October 2003--after the White House had declared (erroneously) that Rove had not been involved in the Valerie Wilson leak--that said, "Not going to protect one staffer + sacrifice the guy that was asked to stick his neck in the meat grinder."

Why is this so significant? According to Wells, the note--written by Cheney in response to Libby's request that the White House also clear him of any wrongdoing in the leak case--is evidence Libby is innocent. Only an innocent man, Wells contended, would ask the White House to absolve him publicly and then--when rebuked by chief of staff Andrew Card and press secretary Scott McClellan--would beseech the vice president. Wells insisted that Libby had been hung out to dry by a White House eager to protect Rove.

But this was not a strong argument. After Cheney wrote that note, McClellan did clear Libby. And given that the White House had declared that Rove had not participated in the leak--even though Rove had been Robert Novak's second source--the fact that Libby wanted similar treatment does not prove his guilt or innocence. Sometimes guilty people want to be declared innocent.

Wells moved to another line of defense. He told the juror the case was simple: it was about two conversations. He meant Libby's phone call with Russert and a conversation Libby had with Matt Cooper. And, Wells added, this is all "he said/she said." He revisited questions about Cooper's and Russert's powers of recall that he raised earlier in the trial. But Wells was also being sly. The case is not merely about whose recollections are more accurate: the reporters or Libby. Wells was trying to distract the jurors from the nine conversations Zeidenberg had reviewed. A case based on two conversations--where there are no notes or third-party witnesses--is "madness," Wells proclaimed, adding, "there's a craziness to this case."

The defense team's closer had an air of disorganization. But that was the point. Wells and co-counsel Bill Jeffress threw whatever they could at the jury. That Russert has a memory problem and a vendetta against Libby--and that Russert actually may have known about Wilson's wife prior to his conversation with Libby. That Libby talked to eleven reporters and did not volunteer information to any of them about Valerie Wilson. That only Judy Miller said he leaked to her--and, Wells added, she cannot be believed. That Libby was too busy protecting the United States from terrorists to recall what had happened. That Libby would not have concocted such a cockamamie cover story that positioned Russert (whom Libby barely knew) as an alibi. That Rove and former Deputy Secretary of State Richard Armitage were the real leakers. That Libby was not at all worried about losing his job. That every participant in the case has forgotten one fact or another. That Valerie Wilson and her CIA connection was not important to Libby because, Wells said, "nobody cared at the office of the vice president." That Libby had no reason to fear any investigation because he had not known that Valerie Wilson was a clandestine CIA employee.

The defense was not linear. There was no narrative. There were many assertions and questions. The closest the defense came to a competing explanation of what happened was its tale of the Libby sellout. Noting that the White House had said that Rove had not leaked, Wells declared, "Rove lied....Rove did talk to Novak." And he put up a slide for the jury that showed photographs of Rove and Libby and carried the bottom-line explanation: "Save Rove/Sacrifice Libby." By complaining about this in October 2003, Scooter Libby, Wells reiterated, had demonstrated he was innocent of any wrongdoing in the leak case. (Wells was operating under the assumption that leakers never lie.) And Libby's lead lawyer slammed the Bush crew for not initially standing by his man: "That's not a team I'd like to be part of. The sure didn't treat [Libby] like he was part of the team."

Over and over, Wells and Jeffress did what defense layers routinely do: drill into the jurors that the government has the obligation to show beyond a reasonable doubt that Libby lied deliberately. The prosecution must present "powerful" evidence, Wells said repeatedly, and the jurors have to base their deliberations upon the presumption of Libby's innocence. Wells told the jurors, "There was memory problems with every witness" and he recalled that Grenier, a prosecution witness, had testified that his recollection of a conversation with Libby had "a fair amount of vagueness attached to it." Jeffress asked, "Which witness came in here and didn't get something wrong?"

Wells finished his case by returning to the sacrifice quasi-narrative, asking the jurors not to treat Libby as he was mistreated by the White House: "[If] someone [in the jury room] starts to say, 'He was a Republican, he worked for Cheney, let's do him,' help that person....Don't sacrifice Scooter Libby for how you may feel about the war in Iraq or how you may feel about the Bush administration. Don't sacrifice Scooter Libby."

His finale was emotional. Scooter Libby is "a good person," Wells proclaimed, noting that Libby, during the trial, had been under Wells' care and protection. "I give him to you," he told the jurors. "Give him back to me. Just give him back." Wells voice broke; he choked back a sob. He sat down.

Then it was Fitzgerald's turn. After three years of working on this case, he, as is customary for prosecutors in a criminal case, would have the last word. "Madness," he exclaimed. "Madness. Outrageous....The government brought a case about two phone calls." He was mocking Wells. This was not a case of he-said/she-said, he explained; it was a case of he-said/he-said/he-said/she-said/he-said/he-said/he-said/she-said/he-said and he-said. "Is this the world's greatest coincidence?" he asked, contending that there could not be nine conversations with everyone remembering the wrong thing. And forget about Russert, he said. If Russert had been "run over by a bus and gone to the great news desk in the sky," the prosecution's case would stand: Libby learned about Wilson from Cheney and others yet claimed he had not.

Valerie Wilson and her CIA affiliation was no trivial matter for Libby and Cheney, Fitzgerald insisted. For Libby and Cheney, Fitzgerald said, Valerie Wilson "wasn't a person...she was an argument...a fact to use against Joe Wilson." He pointed out that there is physical evidence. According to the notes of Libby's CIA briefer, Libby told the briefer about Wilson and his wife a full month before Novak's column--and Libby did so during a briefing that covered heavy-duty national security issues, such as terrorist plots and the war in Iraq. This document, Fitzgerald said, "is a fingerprint of the defendant's brain."

Fitzgerald called the jury's attention to other documents that showed Libby and Cheney were nearly obsessed with the Wilson matter. He demonstrated that Cheney himself had helped create a set of talking points in early July about the Wilson imbroglio that began, "It is not clear who authorized Joe Wilson's 2002 trip to Niger." This showed, Fitzgerald argued, that the boss was concerned with the origins of Wilson's trip. (Cheney and Libby believed the media accounts made it appear that Cheney had directly dispatched Wilson, though Wilson had only been sent by the CIA in response to a question Cheney had put to his intelligence briefer.) Fitzgerald recounted how prosecution witnesses had testified that when Libby talked about Wilson's wife he did so in an unusual manner, as if Libby knew the subject was sensitive.

Fitzgerald came to the rescue of Judith Miller, whom he had sent to jail for 85 days before she agreed to cooperate with his investigation. The defense had had easy work in undermining her credibility--especially because she had forgotten in her first grand jury appearance to recall an entire meeting with Libby. But Fitzgerald walked the jurors through key portions of a memo on the Wilson trip that was sent to Libby on June 9, 2003. He then showed the jury portions of Miller's grand jury testimony in which she noted that Libby had shared these same specifics with her during a July 8 meeting at the St. Regis Hotel. This exercise was a twofer for Fitzgerald. He demonstrated that Miller could be a reliable witness and that Libby had been quite interested in and able to recall details about the Wilson matter. It seemed Libby did have a good memory on this topic.

Fitzgerald chugged along. He undercut the defense team's contention that Cooper's notes back up Libby's claim that he only shared scuttlebutt with Cooper. Fitzgerald scored points in rebutting the defense attorney's attacks on Russert. And he took on Wells' charge that the prosecution had throughout the trial attempted "to put a cloud over" Cheney. "There is a cloud on the vice president," Fitzgerald replied, explaining that Cheney had written notes indicating he was interested in the Valerie Wilson connection and that Cheney had sent Libby to the meeting with Judy Miller where Libby (according to Miller) told her that Wilson's wife worked at the CIA. "And that cloud remains," Fitzgerald declared, "because this defendant obstructed justice....That cloud was there. It was not something we put there." Cheney and Libby, Fitzgerald noted, could have held in July 2003 a press conference to reveal information they believed would undermine Joseph Wilson's attack on the White House. Instead, they went with a leak to Miller. But why would Libby rely on a Russert-told-me cover story that could not withstand close scrutiny? "The sad truth is that sometimes when people lie it looks dumb when they get caught," Fitzgerald said.

The prosecutor brushed aside the argument that Libby merely failed to remember what he had known and discussed about Valerie Wilson. Use your common sense, Fitzgerald asked the jury. Wells had earlier said that prosecuting Libby for not accurately recalling in October 2003 details of conversations he had in June and July 2003 was akin to asking a college student, who had spent a summer on a beach, to remember in the fall the specifics of a conversation he or she had the previous semester. That's nonsense, Fitzgerald retorted, noting that memories are dependent on "uniqueness, importance, and anger." Valerie Wilson's CIA connection was certainly unique, he maintained, and the vice president's office believed the Wilson trip was a significant topic. And Libby, according to the testimony of several prosecution witnesses, was angry about Wilson's claim that the White House and the vice president had manipulated the prewar intelligence. "When you think it's important, when you're focused on it, when you're angry about it--those are the things you remember," the prosecutor said. And, Fitzgerald added, Libby's CIA briefer had testified that he told Libby and Cheney that the disclosure of a clandestine CIA officer could lead to the harassment, torture or death of others. Even a 21-year-old, Fitzgerald said, would consider that important.

Winding up, Fitzgerald aimed at the entire Bush crew. "There's a cloud over the White House as to what happened" in the leak affair, he told the jury. There were questions as to whether the law was broken when Valerie Wilson's CIA cover was blown and "what role the defendant played...what role the vice president played." Looking straight at the jury, Fitzgerald asked, "Don't you think the FBI and the grand jury is entitled to straight answers." Instead, he said, Libby made up a story and obstructed justice. Echoing Wells' last lines, Fitzgerald declared of Libby, "He stole the truth from the judicial system. Give truth back." With that, Fitzgerald was done.

After weeks, each side had presented the expected arguments. The prosecution marshaled a set of concrete facts that appeared compelling and that supported a narrow narrative. The defense picked at each witness, raised a host of other matters, suggested alternative theories (and conspiracy theories) without proving any, cited reporters to whom Libby had not leaked, and claimed that Libby had testified accurately to the grand jury and the FBI and that if he had not he had merely committed good-faith memory slips.

Fitzgerald offered a solid case. Wells offered several possibilities for any juror looking for a peg for a reasonable-doubt argument. Now twelve jurors will have to answer the question: who was sacrificed--Scooter Libby or the truth?

Posted by David Corn at February 20, 2007 10:40 PM


capt said...

Mr. David Corn,

Excellent work.



Robert S said...

Meanwhile, back in the 2 Circuit, the Constitution gets a battering, thanks in part to the Military Commissions Act:

Court: Detainees Can't Challenge Cases
By Hope Yen
The Associated Press
Tuesday 20 February 2007

Washington - A federal appeals court ruled Tuesday that foreign-born prisoners seized as potential terrorists and held in Guantanamo Bay may not challenge their detention in U.S. courts, a key victory for President Bush's anti-terrorism plan.

The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that civilian courts no longer have the authority to consider whether the military is illegally holding the prisoners - a decision that will strip court access for hundreds of detainees with cases currently pending.



US sponsored War Crimes: The Atrocity Exhibition
A Review of the Kuala Lumpur War Crimes Exhibit
by Michael Carmichael
Global Research, February 19, 2007


RicK said...

Re: SSgt. Frank Wuterich

Those who read Glenn's work at Unclaimed Territory may remember the slander lawsuit filed against Rep. John Murtha regarding the war crimes alleged to have occurred at Haditha, Iraq. As background, Glenn commented that SSgt. Wuterich's attorney, Mark Zaid, filed the suit for partisan purposes. (Caveat: This is my recollection of those comments from my memory. These postings are still available at Unclaimed Territory.) As a result of those postings, I initiated correspondence with Mr. Zaid regarding whether his purpose for filing the suit was partisan, as Glenn suggested, or not. As a result of that correspondence, I posted several e-mails from Mr. Zaid in UT's comments to Glenn's posts.

Today, I received the following e-mail from Mr. Zaid. As you can see from the e-mail, he has requested that I (and others) forward this message to others.

Dear Friends, Colleagues and Servicemembers:

Many of you may know that since June 2006, I have served as co-civilian counsel, along with Neal Puckett who is lead counsel (and Of Counsel to my law office), for SSgt Frank Wuterich, USMC. Frank is now facing multiple counts of murder for the events arising from the deaths of 24 Iraqi civilians at Haditha, Iraq on November 19, 2005. He was the squad commander for the 3/1 that tragic day.

This is a highly unusual case for me. Other than the dozen or so military courts-martials I handled back in 1999-2000 dealing with anthrax vaccine refusers, I am not a criminal defense attorney much less a military criminal defense attorney (though I often represent military servicemembers in the civil context in administrative or litigation proceedings against their federal agencies).

Neal brought me in on this case due to the high-profile and sensitive nature of the allegations. This is not a typical military case. It has become highly politicized and, in our opinion, these young Marines are being sacrificed for foreign policy reasons. Indeed, one of the first things Neal and I did after I reviewed the facts of the case known at that time was to initiate, on August 2, 2006, a defamation lawsuit (which has no partisan agenda whatsoever) against Congressman John Murtha for incredibly inappropriate public statements he made that have already been proven by the government's alleged charges to be false. These statements created a further climate that contributed to the public pressures to file charges against our client.

I should point out that the Haditha case has nothing to do with the Hamdania case, which is constantly confused as one and the same. No one has pled guilty, much less confessed, to any crime with respect to Haditha. No one has been confined or shackled. The confusion between the two cases, and other clear examples of criminal conduct in Iraq, has also contributed to the negative - inaccurate - public image of our client and his fellow Marines.

I have reviewed thousands of pages of evidence that few have seen. The deaths of these Iraqi civilians was a terrible tragedy, but it was not a massacre as some in the media have portrayed. And I personally do not believe, based on what I know, that SSgt Wuterich committed a crime that day. War is a terrible thing. Innocent lives are lost. This was not the first time, nor will it be the last. Whenever women, children and the elderly are killed it is natural to want to blame someone. After all, how can it be possible that children are killed and no one is punished? But if the rules of engagement and the laws of war, especially under the circumstances such as existed in Haditha that day, are to mean anything, then SSgt Wuterich is innocent of all charges.

We are set to prove this and defend the law. The Article 32 hearing, which is the initial step within the military system, is scheduled to begin June 4, 2007. There will be a great deal of press, no doubt good and bad, that will appear in the coming months. This case is important enough to me that I am devoting a significant amount of my time to it. There is, in fact, far more at stake than just the eight Marines who have been charged with crimes arising from actions taken that day. What it means to be a U.S. Marine is being challenged. Indeed, the system, and some may even say the War, is on trial.

I wanted to make you aware of a website that has been set up to educate the public about Frank. It provides relevant information about the incident, routinely posts updates on the case and, more importantly, personalizes this young man. I encourage you to take some time and review it.


Moreover, your wide dissemination of this website would be appreciated. Frank needs as many voices in his corner as possible so that justice will be done.



Gerald said...

From the previous thread!

robert s., I basically only post the article. I put my words on some of the articles. If I see some interesting comments from the author, I will cut and paste the words as soon as I can after I post the article. My typing skills and my computer skills are quite limited. I try to post good articles. I sometimes post an article that has my keen interst in order to relieve my frustrations regarding the direction of our country. I doubt that my posts will alter the world scene. Plus, I post for therapeutic reasons as well. The article is color code in blue. Highlighted words from the article are black and I try to match them up as soon as I can. Sometimes a post will come from a person and my second post regarding the article will be seen maybe 1, 2, or 3 comments later.

O'Reilly said...

Why Corn turned closing arguments into a he said/he said is beyond me. He has proven himself willing to call "lair" when he hears one. He's been there throughout the trial and reported everyday. So what's your verdict Corn?

uncledad said...

Was I supposed to read that? Why? Aint the pardon here already. Such a waste of time. Let’s follow the back story, let's allow the C-student in Chief to walk. Apparently these are not impeachable crimes (Corn said so), so why draw them up? Nice artwork, bad result. Hey Corn, have you started your site back up? What’s the problem, nobody listening?

Carey said...

Robert S.

That ruling on the Guantanamo detainees so royally pissed me off. What a giant step backwards.


Well there you go. The pardon will be upon us soon. At least we got some of the important stuff about Cheney's predominance in the fraudulent selling of the war out in the open.

Please help put polar bears on the endangered species list.


capt said...

New thread!