The Libby Trial For Dummies

We asked CBS News Legal Analyst Andrew Cohen to explain the Libby trial for us and others who got most of our legal expertise by watching re-runs of "Law & Order."


(CBS)
There is such a swirl of political and legal jargon, not to mention media hyperbole, surrounding the perjury and obstruction of justice trial of I. Lewis "Scooter" Libby that reasonable people could easily be forgiven for not knowing what the heck to make of it all. With that in mind, and with opening statements slated to begin early next week, I humbly offer, for the first time under the rubric of "Couric and Co.," CourtWatch's longstanding and famously popular question-and-answer session.

What is the Libby trial all about? Please explain it to me like I'm a fifth-grader.

It's really not that complicated. Libby, who was Vice-President Dick Cheney's chief of staff, was brought before a grand jury and asked under oath what he knew about the investigation into the identity of the person who leaked to reporters the name of a CIA agent. You aren't allowed to leak such names and a federal prosecutor was trying to get to the bottom of the matter. Now that prosecutor, an earnest fellow named Patrick Fitzgerald, believes that Libby lied to the grand jury, and to federal investigators, which also is a federal crime. Remember Martha Stewart? She went to prison for five months (and served house detention for another five) for similar crimes.

What about the investigation itself? Did anyone get in trouble for leaking the name? And if not why did Libby get in trouble?

It's the same old story—not the crime but the cover-up—that creates a headache for someone. We now know that a guy named Richard Armitage was probably the first person to identify Valerie Plame as a covert agent when he told a journalist about her but that he did so perhaps inadvertently (though some disagree about that) and then promptly disclosed his sin (if not his crime) to Fitzgerald. And the now-humbled-but-then-hubristic Karl Rove, who also was an earlier target of the investigation but he too has since been cleared. Why? We may never know precisely. But the best guess is that since the federal "leak" statute makes it so hard to convict, the evidence against anyone and everyone simply wasn't enough for Fitzgerald, a no-nonsense apolitical prosecutor, to take to trial. Sometimes, truly there is less "there" there than people think.

That doesn't today help Libby, though. Prosecutors like to make examples out of high-profile defendants like Libby—just ask Martha Stewart—so when Libby's answers didn't add up Fitzgerald decided that he would force Libby to defend himself in court. Libby says that he didn't lie to the grand jury or anyone else about what he said or did not say about Plame when her name was being discussed at the White House because he was so involved in more important national business that the Plame game was no longer on his radar screen. The judge calls it a "faulty memory" defense but you can call it the "I'm too important" defense also.

What about the Vice President? Why is he going to testify and what's that going to be like?

To the delight of journalists but the dismay of White House lawyers, Dick Cheney says he intends to testify on behalf of his friend, Libby. Everyone expects the Vice-President to say really nice things about Libby and to support Libby's defense that he was so busy with other stuff that he ought to be forgiven for not succinctly answering the prosecutor's questions about Plame. As the trial starts it is unclear whether Cheney actually will come to the courtroom and offer live testimony or whether he will be allowed to testify in private, in a deposition, that then would be shown to jurors. Either way, if he takes the stand, government attorneys will be able to cross-examine their boss!

I've heard that some big-name reporters are going to have to testify. Why? What could they possible add?

Good question. It's true. Big names like Tim Russert and Bob Woodward likely will testify about which government officials told them what and when about Plame. These guys and their attorneys fought like wildcats to protect their sources but the federal courts refused to back them up. So now they will be used like pawns by prosecutors and defense attorneys to support one case or another. For example, Russert is expected to contradict certain testimony that Libby will offer (and, yes, Libby probably will testify even though he has a constitutional right not to testify).

So will the trial end up being a referendum on the White House's Iraq policy?

Thanks for saving the best question for last (or almost last). Although it will be very hard to separate this legal trial about perjury from the political trial about Iraq, it should not be impossible to do so. The judge already has said that he will not allow either side to stray too far away from the technicalities of the law and I believe that he will be able to do this. This is especially important for Libby since a trial here on the merits of the Iraq war almost certainly would doom his chances of gaining an acquittal.

Now, you may have heard already that potential jurors were asked this week for their views on the way the Bush Administration has handled the war in Iraq. This may give you the feeling that the trial is going to be more about politics than about the law. Don't buy it. What goes on during jury selection doesn't necessarily follow through at trial and as they choose their jury the attorneys wanted to be able to know how intense are the political leanings—one way or another—of potential jurors.

So is this going to be the latest trial of the century?

No chance. If people think this trial is going to be the second coming of Watergate or the Clinton impeachment trial they are going to be sorely disappointed. Put it this way: most of the political wind already has blown through this case—there don't appear to be any bombshells left—and no matter how sexy we'd like to think perjury cases are, they just aren't. And not even a grown man called "Scooter" is going to change that.




  • Andrew Cohen

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