by John M. Curtis
(310) 204-8700

Copyright February 13, 2007
All Rights Reserved.

igh drama ended abruptly at the perjury and obstruction of justice trial of I. Lewis “Scooter” Libby in Washington's U.S. District Court, as Defense Atty. Theodore Wells announced neither Libby nor Vice President Dick Cheney would testify. With U.S. Atty. Patrick Fitzgerald resting his case Feb. 9, all eyes were on Wells, who promised in Dec. ‘06 to not pull any punches, putting Cheney on witnesses stand. As the case developed, it became obvious that Cheney damaged Libby's case by establishing he disclosed covert CIA operative Valerie Plame's identity to Libby nearly one month before Libby claims to have learned her name July 10, 2003 from NBC bureau chief Tim Russert. Russert denied under oath Feb. 8 that he was the Libby's source, sending Wells' case into a tailspin. Putting Cheney—or Libby for that matter—on the stand only raised more problems.

      Failing to put Libby on the stand runs the risk of harming his already shaky credibility, something Wells might have fixed. Wells' “faulty memory” defense would have been hurt by allowing jurors to observe firsthand Libby's prodigious intellectual skills. Selling “faulty memory” assumes the witness would appear rattled, if not mentally challenged—anything but what's seen in Libby. Wells still banks on the ever-shrinking chance that he can induce enough reasonable doubt. Wells called more Washington journalists including, Washington Post managing editor Bob Woodward, to admit Libby didn't divulge Plame's name. When former Bush press secretary Ari Fleischer testified that Libby divulged Plame's name on the q.t. over lunch July 7, 2003, Libby's case headed south. Libby, after all, claimed he first learned Plame's identity from Russert on July 10, 2003.

      Refusing to testify indicates to jurors that the witness might self-incriminate. U.S. District Court Judge Reggie B. Walton asked Libby whether he was certain about his choice to not testify. “Yes, your honor,” answered Libby, allowing jurors to wonder why he refused to take the stand. While jurors are instructed not to see that as a presumption of guilt, righteous defendants look forward to speaking out. Innocent parties have nothing to lose, loudly protesting their innocence. Guilty parties typically avoid testifying. Wells asks jurors to believe Libby accidentally forgot he learned Plame's identity from Cheney and somehow recalled hearing it from Russert. That's quite a stretch from the man managing the vice president's office. Wells wants to paint Libby as a scapegoat, throwing him under the bus to protect a bigger fish, Bush's deputy chief of staff and senior advisor Karl Rove.

      Fitzgerald learned that Rove passed Plame's name on to former New York Times journalist Judith Miller and Time Magazine's Matthew Cooper. Rove didn't create a cock-and-bull story about learning Plame's name from other journalists. Former Sen. Fred Thomson (R-Tenn.), speaking at a Libby fundraiser, now playing a prosecutor on NBC's “Law and Order,” believes that Fitzgerald overstepped his bounds, prosecuting Libby when outing Plame wasn't illegal. Thomson must admit that no one told Libby to concoct a wild story about NBC's “Meet The Press” anchor Tim Russert. Libby could have told the FBI and grand jury either he didn't remember or that he was taking the Fifth Amendment. Neither Cheney nor Libby wanted to endure Fitzgerald's cross-examination. Wells was caught between a rock and a hard place, ultimately deciding keep both men off the stand.

      Wells hoped to have Cheney attest to Libby's burdensome stress and responsibilities during the time he learned and shared Plame's identity. Now that Cheney won't testify, it's more difficult to explain how a brilliant mind like Libby could forget that his boss told him about Plame. Jurors can't fathom the broader implications of Cheney's methodical attempt through Libby to discredit the wife of former Amb. Joseph C. Wilson IV for publishing his infamous piece in the New York Times July 6, 2003, accusing the White House of twisting prewar intelligence. One can only guess that Wilson hit a raw nerve, blowing the cover of the administration's flimsy excuse for war. So much wasted time and energy was spent refuting one man's opinion about the rationale for the Iraq war. Jurors can only stick to the minutia of whether Libby lied and obstructed justice.

      Wells overplayed his hand promising to put Cheney and Libby on the stand. Failing to do so usurps the bravado from his defense, now twisting in the breeze. Whether he likes it or not, jurors can't hear firsthand from Libby about his stress and information overload, causing him to accidentally give the FBI and grand jury faulty information. Wells has a huge task of discrediting all of Fitzgerald's witnesses, especially Russert, for somehow framing his client. Jurors won't hear directly from Libby how on-the-job stress caused him to get his wires crossed. They won't here from Libby how trivial he viewed the Plame matter relative to his national security responsibilities. Now it's up to Wells to paint a sinister picture of how White House operatives set up his client. Libby can only sit back and bite his tongue while jurors decide his fate.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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