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Richard Smith on the Scooter Libby trial.
 

Tavis: Richard Smith is a former federal prosecutor who’s been keeping a close eye on the case involving Dick Cheney’s former chief of staff, Louis “Scooter” Libby. Now in private practice, he previously served as a deputy chief in the fraud section at the Department of Justice. He joins us tonight from Washington. Richard Smith, nice to have you on the program, sir.

Richard Smith: Thank you, it’s good to be here.

Tavis: Before I go back, let me start with the news of today. So we read that a juror in this case has been dismissed. What for, and how does that impact the deliberations already underway?

Smith: You’ve heard it correctly. A juror was dismissed today for receiving information outside of the courtroom. Basically over the weekend, she probably read or heard something on the news, and therefore disqualified herself from sitting on this jury. Now the judge is left with the decision, they’ve decided to proceed with 11 jurors in this case.

Tavis: Does that play to the benefit of one side or the other, now that they're down to 11 jurors?

Smith: It’s quite clear that the prosecution wanted - that’s Mr. Patrick Fitzgerald - wanted an alternate seat in this case. The judge did not do that. He’s decided to proceed with 11. This allows the deliberations to continue. Had the judge decided to sit an alternate juror, the deliberation would start over again at the beginning. And it’s probably a good thing for the defense.

Tavis: All right. It’s impossible to go back and have you recap the entire case here. But share with me two or three thoughts, if you might, about how this case has progressed that has gotten your attention as you’ve been following the trial.

Smith: What’s been quite impressive from the government perspective is the way they put their case on. They kept is short, they kept it simple, and they kept it sweet. They tried to boil this down to whether or not Scooter Libby lied for this jury. And so they avoided the complications of trying a very complex case. The defense in this case did a very good job of showing that peoples’ memories will face over time. And in this case, it’s quite possible that Mr. Libby’s memory faded, as opposed to him knowingly and deliberately lying to the grand jury and to the F.B.I.

Tavis: To your eye, how did the prosecution do in making the case? You said the defense did a good job. You didn’t assess how the prosecution team did, except for the fact to say that they kept their case short, sweet, and to the point. How effective were they, you think, in making the case about his lying?

Smith: On a scale of one to 10, I give them a nine-plus or a 10.

Tavis: Wow.

Smith: They boiled it down to what he told reporters at a time when this should have been something that he remembered when he spoke to the grand jury. And they highlighted that testimony for the jurors in this case.

Tavis: I've not been following this case every single day, but as I listen to you talk about it, and I've heard others talk about it, I've heard similar stories. That the prosecution kept their case tight and went right at his lying. That the defense said, as you mentioned earlier, that peoples’ memories do fade over time. Since we have to do whatever we do beyond a reasonable doubt, it would seem to me that particularly in a place like the one that Scooter Libby worked in, that people might be open to hearing the argument that peoples’ memories do, in fact, fade over time, and that it wasn’t deliberate. Your read?

Smith: Here’s the one problem with that argument. Mr. Libby was tasked with trying to discredit former Ambassador Wilson, and he had specifically meetings with people on a daily basis about how do you come back the (unintelligible) article that was in the news, and how do you come back to criticism that Wilson had levied against this administration regarding whether or not they relied on faulty intelligence? That’s just not something - that’s not an everyday conversation. It’s something you don't easily forget.

Tavis: What do you know about the racial make-up of this jury?

Smith: The jury breaks down to about - before this juror got dismissed, there were 12 jurors. Ten White and two Black. There were nine women and three males. Now you have eight women and three males sitting on this jury, and you still have two African Americans on this jury panel.

Tavis: How do you read the make-up of the jury, in terms of their deliberations?

Smith: That’s hard to say. This jury is kind of unique in that if you look at the demographics of D.C., this jury doesn’t necessarily reflect the demographics of this community. But it’s a very educated jury. So it’s been one very simple for the prosecution to explain their case to, and one for the defense to try to convince that just like all the prosecution witnesses had faulty memories in their testimony and cross-examination, their client could have had the same problem. Therefore, the prosecution failed to carry their burden. So it’s a good jury for the prosecution, but not a bad jury for the defense, either.

Tavis: By my own admission, as I said earlier, I have not followed this case every single day, which is why I'm glad to have you on. I asked that question because I happen to know Ted Wells, who’s Scooter Libby’s attorney. And I was wondering, at least, whether or not his being African American would play well with an African American jury. Kind of like Johnny Cochran in the O.J. Case. But I hear you saying that’s not really an issue, given that the majority of the jury is White.

Smith: I don't think it’s an issue, but Mr. Wells is gonna play well with the jurors, whether the jurors are African American or White. He’s going to play well. He’s articulate, he’s an outstanding trial lawyer, and he has the ability to capture jurors in a courtroom and have a (unintelligible) jurors that many lawyers don't have. So I think it was a great strategy on their part. And in fact, it was probably one of the best things Mr. Libby did, was having Mr. Wells as his trial lawyer in this case.

Tavis: Good. And I should say for the record, I'm not trying to cast aspersion on Ted Wells. He is a fine attorney. I was just curious about the make-up of the jury, given that it is the District of Columbia. And to your point, oftentimes these juries happen to be much more Black than other juries because of the make-up of the district. That said, tell me what we’ve learned most interestingly about the White House’s role in this Plame Affair, as it’s being called.

Smith: It is quite clear that Mr. Libby was acting on commands from on high. This wasn’t something that he set out to do by himself. And there was an orchestrated effort to try to discredit a chief critic of this administration’s policy reasons for going to war. What this case truly shows is how sausage is made here in D.C.

It’s not always pretty, and most of the time you don't violate the law. But in this case, they went to great lengths to try to discredit a person’s - Ambassador Wilson’s - comment, which gives credibility to those comments. So, it clearly shows the White House was concerned about what Wilson was saying, and whether or not the basis that we relied upon to go to war was based on faulty information.

Tavis: And back to Ted Wells again. Ted Wells decided not to call Scooter Libby to the stand. He decided not to call Vice President Cheney to the stand. What do you make of those decisions?

Smith: First off, when it comes to Mr. Libby, Mr. Libby in effect did testify through his grand jury testimony. Any time a defendant takes the stand, it is high stakes in a trial. And I think it made good sense to not put him on, because the jury heard his story from his grand jury testimony in this case. As it relates to the vice president, I think it hurt the defense, in that Mr. Wells had promised certain things in the opening statement that he did not deliver on during the trial.

And it would have been key to have Mr. Cheney on the stand testifying about his role, and what conversation he had with Mr. Libby as it relates to trying to discredit Ambassador Wilson.

Tavis: I guess the flip side of that argument, Richard, would be that Dick Cheney’s negative numbers are so high that you're rolling the dice to put anybody whose negatives are that high on the stand with voters, jurors, in the district.

Smith: That is one way to look at it, and that is a keen concern. But you have to understand that in this case, both the prosecution and the defense had 20 strikes, and they really didn’t select this jury. They deselected those people that would have been predisposed to not like Mr. Cheney. So what you end up with is a jury that you hope would have been fair and unbiased, and could receive his testimony.

Tavis: So finally, what’s your sense of what we’re waiting to hear?

Smith: I truly believe that the longer this go out, the better it is for the defense. Because this jury comes back in the next day or two, it will probably be a verdict for the prosecution. But as it drags out, that is to the defense benefit.

Tavis: We will see what happens in the coming days, if not hours. Richard Smith, former federal prosecutor himself, following this trial. Mr. Smith, nice to have you on, sir. Thanks for your insights.

Smith: Thank you very much. Have a good evening.

Tavis: You too.