Ins And Outs Of The Libby Defense

Attorney Andrew Cohen analyzes legal issues for CBS News and
Trying to predict the tone and tenor of the upcoming perjury and obstruction trial of I. Lewis "Scooter" Libby requires, as the trial judge himself recently put it, a level of premonitory thought worthy of the late Johnny Carson's "Carnac the Magnificent." Much of the trial will ebb and flow based upon classified evidence (of internal White House discussions) that you and I have not yet seen — the admissibility of which the judge has not yet determined. Anyone who predicts with certainly the outcome here is trying to sell you a pig in a poke.

The prosecution's inside-the-Beltway case against Libby is decidedly simple. The government alleges that the vice president's former chief of staff lied under oath when asked about the public "outing" of Valerie Plame, the CIA agent whose husband, Joseph Wilson, became a target of the Bush administration's wrath after criticizing the White House's Iraq policy in 2003. With his legal background and meticulous nature, prosecutors will argue, it is not reasonable to believe that Libby would have been so careless about his recollections of the Plame matter. No mistaken memory, the feds will say, but instead a simple crime.

So, with no small amount of irony, prosecutors likely will tell jurors during opening statements Tuesday that even if those on the panel are supporters of the Bush administration or the White House's Iraq policy they still have the legal, moral and ethical responsibility to judge the defendant solely upon his own actions (or, in this case, his alleged inaction). And, along the same lines, the feds will remind jurors that even if they don't like President Bush, or Dick Cheney, or where we are today in Iraq, there is still plenty of apolitical, nonpartisan evidence at trial to support a conviction in the felony case against Libby.

Forget all the trappings of power, federal lawyers are likely to tell jurors, and evaluate the federal case against Libby as you would the case of any other smart, slick fellow alleged to have fudged a material fact or two when federal investigators and the grand jury came calling. That is a strange theme, indeed, from the government especially, in a case that has drawn so much attention for its political underpinnings and partisan flavor. Conventional wisdom suggests that because of the debacle in Iraq, the more political the case becomes the more likely it is that Libby will be convicted. I don't buy it. I think Libby's only chance to gain an acquittal is to have his lawyers befuddle or bedazzle jurors with the political, partisan nature of his life and times and job.

For that reason, the defense case is decidedly not simple. That's why it is Team Libby, and not the prosecutors, who I bet will seek to interject as much political context into this case as U.S. District Judge Reggie Walton will allow. This strategy explains why so much of the focus of jury selection last week was spent trying to discern the political views of potential jurors. Defense attorneys in particular want to make sure that potential jurors don't have harsh views of the White House because they want to be able to play the "political card" on behalf of their client without having the whole deck fly up in their faces.

Here, verbatim, is the essence of the defense case, according to his attorneys in a document filed late last week: "Libby contends that he told the FBI and the grand jury his honest recollections at the time, and to the extent any of those recollections were incorrect, his mistakes are innocent ... He contends that any conversations he had about Ambassador Wilson's wife during June and July 2003 were so brief, and the information he received so incidental to the issues he was dealing with, that he honestly did not recall them when he was questioned about them."

His lawyers, in other words, are going to try to convince jurors that there client was so busy monitoring and spinning national security matters — which "dwarfed" in "amount and importance" the Plame matter — that he can, and should, be forgiven for not remembering whether and to what extent he helped disclose Plame's identity or lied about it later, under oath. The defense reportedly plans to try to introduce portions of 129 classified documents designed to help convince jurors that Libby had North Korea and Iran and Iraq on his mind, and not Plame or her hubby, at all relevant times. Judge Walton has called it the "faulty memory" defense, but you just as well could call it the "I Had Bigger Fish to Fry" defense.

The whole thing reminds me of an experience I had in law school. I was serving as a "baby" public defender and one of my "clients" was a man, already incarcerated, who was being brought up on new charges that he stole a car. "I didn't steal that car," he said to me. "Great," I said. "That's great. Can you tell me what did happen?" "You don't understand," he said to me, "I'm a crack dealer. I don't do that petty car (stuff)."

That is darn close to what Libby and his lawyers are saying. He was an architect and implementer of (mostly failed) foreign policies, the defense goes, and thus did not have time, inclination or criminal state of mind to be guilty of the petty offense of perjury and obstruction of justice. We will see if Libby has better luck with this defense than my client had with his.

I have no idea what is about to happen at the fabled E. Barrett Prettyman Courthouse in the District of Columbia; no idea which side will win or lose, legally or politically, when the fur finishes flying. But I will predict this: Even though the trial is about perjury and obstruction, about what the meaning of the word "is" is, it won't be the most boring high-profile trial our nation has ever endured. And I say that without even considering the sight of Cheney, Tim Russert, and Bob Woodward coming to the witness stand and being a part of the historic event.