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Final Arguments Heard in Libby Perjury Trial

February 20, 2007 at 6:05 PM EDT

RAY SUAREZ: The jury in the federal perjury trial of Lewis “Scooter” Libby, Vice President’s Cheney’s former chief of staff, spent the entire day hearing final arguments.

The charges against Libby stem from the investigation into who blew the cover of CIA agent Valerie Plame, the wife of Ambassador Joseph Wilson. Wilson openly refuted the Bush administration’s intelligence in the run-up to the war in Iraq. The investigation didn’t result in criminal charges connected to the leak itself.

Instead, the special prosecutor in the case, Patrick Fitzgerald, charged Libby with lying to the grand jury and obstructing the investigation of the Plame leak. Libby originally told the grand jury it was NBC’s Tim Russert who first revealed Plame’s identity to him during a conversation on July 10, 2003, but later said a search of his notes reminded him it was Vice President Cheney who had been the first, one month earlier.

But taking the stand at Libby’s trial two weeks ago, Russert, who arrived on crutches, maintained he and Libby never discussed Plame during their 2003 conversation.

Former Press Secretary Ari Fleischer was one of several White House officials who testified they did discuss Plame with Libby, which Libby says he simply doesn’t recall. Jurors will begin deliberating at this Washington, D.C., federal courthouse tomorrow.

The final arguments

RAY SUAREZ: Joining us now is Carol Leonnig, who has been covering the trial for the Washington Post.

Carol, welcome back. The prosecutors got to make their final arguments first. What did they tell the jury?

CAROL LEONNIG, The Washington Post: The prosecutors got two bites at the apple actually, Ray. They got to sum up their case and then come back with a rebuttal, as is the tradition in federal court.

What they essentially said was that Scooter Libby intentionally, deliberately lied. Special counsel -- I'm sorry, Special Prosecutor Patrick Fitzgerald said that Libby had told a dumb lie and got caught. And it was an implausible lie to conceal his role in leaking Valerie Plame's identity to the press.

And in a pretty dramatic courtroom moment, he pointed up to his screen in the courtroom and said, "Here are the nine people whose recollections contradict Scooter Libby, and there's no coincidence that they all remember him intensely focused on this woman, and he says he doesn't remember."

RAY SUAREZ: Well, the defense certainly had to push back against a story like that. What was their version of the facts placed in evidence during the trial?

CAROL LEONNIG: Well, the defense had two attorneys, as you know, Ted Wells and Bill Jeffress, arguing that there were so many people in this case that had slightly different recollections that they couldn't be -- that these witnesses for the government couldn't be viewed as just making innocent mistakes, but Mr. Libby was viewed as making a malevolent lie or telling a deliberate lie.

They pointed out that there were lots of contradictions. For example, the one they were most interested in was that in which Washington Post reporter Walter Pincus said that former White House Press Secretary Ari Fleischer told him about Plame after a lunch that Fleischer had had with Libby and learned this information.

Fleischer had told the grand jury he did not tell Walter Pincus this information, and the defense picked that and several other instances to say, "Hey, there are a lot of people that had flawed memories."

They also argued that there was no motive for Libby to lie, that he just wanted his name cleared. He hadn't done anything wrong, except make faulty statements to the grand jury because he had a bad memory. He was an overwhelmed guy, and it boiled down to something that simple.

RAY SUAREZ: Give me a brief description of how the rebuttal phase works. People who watch courtroom dramas on television are familiar with that dramatic final argument. Then the other side gets up to say, "Well, not exactly"?

CAROL LEONNIG: Yes. It's an advantage the government has in putting on its case, an advantage that, you know, is supposed to be contrasted with the fact that the government has a very high burden. They have to prove beyond a reasonable doubt in this case that Scooter Libby intentionally, deliberately lied about his conversations with Matt Cooper, about his conversations with Tim Russert, and about his conversations with Judy Miller of the New York Times.

So it's a high burden. And in the rebuttal, in this instance, you had Prosecutor Peter Zeidenberg make the summary of the case. You had the two defense attorneys for Libby come on, and then the rebuttal was sort of the Patrick Fitzgerald show, which seemed fitting, since he's the special counsel who brought this case, was appointed in 2003 to take on a case that Attorney General Ashcroft thought he had a conflict of interest in handling.

'Star-studded' witnesses

RAY SUAREZ: Looking back over the case culminating in today, was there any witnesses' testimony that was really used very heavily by either the prosecution or the defense, out of that star-studded list of people from political and journalistic circles in Washington?

CAROL LEONNIG: Well, it was clear -- I mean, at least today you could tell that the testimony that the defense most wanted to rip to shreds was that of NBC's Tim Russert. Remember, he's a pivotal star witness for the prosecution.

Libby has said he learned this information almost as if it were new about Valerie Plame from Tim Russert. And Tim Russert took the stand, and firmly and calmly said, "I couldn't have told Scooter Libby that. I didn't tell him that. It was impossible. I didn't know who Valerie Plame was. And I didn't know she worked at the CIA until four days later when I read it in the Washington Post."

RAY SUAREZ: And on the part of the prosecution, was there some place that they were pointing the jury's attention to?

CAROL LEONNIG: Definitely, they were also keen and focused in on Russert's testimony. But in the rebuttal, Fitzgerald was a fast-moving kind of missile. He wanted to make sure that the jury got to hear once again every single person who had contradicted Libby.

And so he went through the panoply, from a secretary of state official, to a CIA official, to a low-level CIA briefer, to the vice president's counsel at the time, David Addington, to a communications director at the time for Cheney, Cathy Martin.

He went just bullet by bullet, each one. Here's what they said; here's how it doesn't square with what Libby said. Libby says it wasn't that important to him about Plame and about Wilson's wife, it wasn't that important to him in this volatile time in the summer of 2003. And Fitzgerald hit each one and said, "You see how each of them saw Libby as being agitated, focused, keenly interested in this subject? Now, what do you believe, jury?"

Proving perjury

RAY SUAREZ: Well, what kind of burden does the prosecution have when it comes to proving perjury? What do they have to demonstrate to the jury actually happened that overwhelms Libby's argument that it was just bad memory, a flawed recollection of the events?

CAROL LEONNIG: You know, I've talked to a lot of prosecutors about this in the courthouse and beyond in other places. And they say that a perjury case is one of the most difficult, because, how do you exactly get into someone's mind, except with circumstantial evidence that surrounds them and all of their actions?

The burden is very high. You have to show that there was an intention to commit a crime, there was an intention to lie, there was a plot. And with the obstruction of justice charge, there's the additional claim that, when they were lying, they knew they wanted to stop this probe. They wanted to confuse investigators.

Now, I have to say that Fitzgerald made a pretty compelling claim today that, you know, kind of a "CSI" moment, when he said, you know, the defense says there's no science here. There's no proof. There's no clear evidence of that intent, that part that's in Libby's mind.

And he said, "Well, let's look at all these documents." And he said, "These are the fingerprints." When you this note with Libby's handwritten memo to himself about Wilson and Wilson's wife, when you see the vice president writing to himself, "Did Wilson get sent by his wife on a junket?" Here are the fingerprints, you know jury, that you should use to tell yourself this was really important to them. He couldn't have forgotten this, And the vice president's office and his chief deputy were on a mission to try to rebut the claims of a very potent war critic.

The potential penalties

RAY SUAREZ: Well, given what you just said, and with so much concentration on what Libby knew, what he thought, what he believed had happened, how come he never took the stand?

CAROL LEONNIG: Well, I have to say there are so many people who have argued they're innocent and their lawyers have urged them not to take the stand and testify on their own behalf.

It's a really complicated question for any defense attorney. And I smile because, throughout this case, the judge has felt strongly that the defense was telling him they were going to put Libby on the stand, they were going to put Libby on the stand. And he got really angry about this last week when he started to hear back-pedaling about that.

However, it's a long, respected tradition in our criminal justice system. You don't have to take the stand. And if you're a defense attorney, you can see potential risks. Even if your client is innocent, there are risks to being cross-examined, especially by someone as laser-like as Mr. Fitzgerald.

RAY SUAREZ: And quickly, Carol, before we go, what kind of penalties does Scooter Libby face on these counts?

CAROL LEONNIG: Well, it really depends to a degree on two factors. There's sort of a ballpark range that could go anywhere from a year-and-a-half to three years under those sentencing guidelines.

Many people talk about the sort of maximum statutory prison term, and that usually doesn't have any correlation to reality. But the factors that go into this is, what the prosecutor recommends, did he think the obstruction -- does he want to tell the judge that he thought the obstruction of justice charge was a serious one, that got in the way of something very important in the criminal justice system?

And it also depends to a degree on what the judge believes. In this case, the presiding judge has a reputation as being very clear, commonsense, no-bones-about-it kind of judge. But he's also called by many in the defense bar a long-ball hitter. He attaches long penalties.

RAY SUAREZ: Well, it's in the jury's hands now. Carol Leonnig, thanks for being with us.

CAROL LEONNIG: Thank you, Ray.