Closing Arguments In The Libby Trial
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com
The lawyer's last words…
The time has come in the I. Lewis "Scooter" Libby perjury and obstruction trial for the attorneys to try to close the sale to jurors before deliberations begin. This means that top-shelf lawyers will stand before the panel for hours and try to put their own legal spin on a case that was born of spin, fed on spin, grew through spin and, ultimately, will be judged by spin-fueled minds.
Special prosecutor Patrick Fitzgerald has an easier job than do his defense counterparts. All he really has to do Tuesday is remind jurors of two simple things: 1) that they have heard during this trial from many independent witnesses all of whom have contradicted the story Libby told federal investigators and grand jurors; 2) that having a bad memory, if indeed Libby has one, simply isn't a viable defense in a case like this unless it is truly well established by defense witnesses.
If Fitzgerald had any special flair, he'd do a riff on the timeless Steve Martin comedy routine and tell jurors this about the Libby defense: "You can't just say 'I forgot that murder was against the law' or 'I forgot to tell the truth to grand jurors.'" The feds have working for them in this trial both quality and quantity. The government's witnesses, including the journalists who were dragged kicking and screaming into the courtroom, may not have been perfect. But they all carried their own share of water for the charges against Libby.
Did Libby tell the grand jury stuff that doesn't seem to be true? Check. Did Libby have an apparent reason to conceal how and when he first learned about Valerie Plame Wilson? Check. Did Libby spend enough time involved in the concerted White House effort to undermine Joseph Wilson (Valerie's ex-ambassador husband) that it seems unlikely that Libby could have forgotten about it when asked under oath? Check. Did Libby come off as a pompous busy-body who doesn't deserve a great deal of sympathy from jurors? Check.
And the biggest problem for Libby's lawyers is that to undermine this prosecution you have to convince jurors that not only is Bob Woodward lying but so is Tim Russert and Walter Pincus and a bunch of current and former administration officials, low and high. And to do that the defense has to convince jurors that these people either had a faulty memory or bad intentions toward Libby and to do that his lawyers have to somehow convince the panel that Libby is a victim in all of this. Prosecutors will say it is simple: Libby is not a victim. He is a liar.
If prosecutors want jurors thinking the case is simple — they always d do — Libby's attorneys want the jury thinking about all of the complexities involved in the life of a high-level White House advisor.
They will tell jurors Tuesday that this whole story is so muddled and confusing that one man alone shouldn't be held legally responsible for how poorly and nastily the White House reacted to the news that Wilson had become an anti-war critic. They will point to their best witness, Libby's successor, John Hannah, who told the panel that Libby was notorious for having a bad memory. They will argue that the Wilson scandal was a tiny island in the ocean of things on Libby's mind, both in the summer of 2003 when all the leaking was done, and in 2004 and 2005 when all the questions were asked.
The defense team's closing arguments might have been a lot easier had their client, or their best witness, taken the stand. But neither man did.
Libby's lawyers didn't allow him to testify — a tactical decision that caused U.S. District Judge Reggie Walton to block the defense from allowing jurors to see certain classified evidence that might have helped jurors understand just how big a shot Libby actually was back in 2003. Clearly, the decision will hurt Libby's chances of gaining an acquittal at trial. But the defense is hoping that Judge Walton's reaction helps them get their client's conviction reversed on appeal.
Libby's testimony might have helped humanize him for jurors and might have helped them understand how it could come to pass that such a sharp guy might "mis-recollect" something under oath. Now his lawyers will have to stand up before jurors and explain it all away.
How? I don't know. The defense case consisted of a few journalists who rebutted some of the testimony of other journalists and the aforementioned Hannah and not a whole lot else.
You can make book that Libby's lawyers during closings will tell jurors that Libby is being picked on by an overzealous prosecutor. And you can bet an awful lot of lettuce that Fitzgerald will tell jurors that just because Libby was powerful and important he shouldn't be excused for not playing things straight when the law came calling.
There is never any way to tell precisely how a jury will come back in a case with as many moving parts as this one has. But in the case of United States v. Libby, it is the government - Libby's former employer - which seems to have all the advantages going into the trial's penultimate act.