The perjury and obstruction trial of Lewis “Scooter” Libby resumes this week with the playing of Libby’s grand-jury testimony and the appearance of star prosecution witness Tim Russert. After that, Libby’s defense team will present its case.
For the last few days, the two sides have been fighting over news articles from 2003 that portrayed Valerie Plame Wilson as a covert CIA officer and the leak of her identity as a criminal act. Prosecutor Patrick Fitzgerald argues that the jury must see the articles, which Libby read at the time, to understand Libby’s frame of mind when he first talked to the FBI. The defense argues that allowing jurors to read the stories would leave them with the false impression that Libby committed a crime for which he is not charged — that is, leaking the identity of a secret agent.
Whatever Judge Reggie Walton rules, the argument has exposed the underlying dilemma in the case, one that arose on the very first day of the trial, when Walton gave the jury this instruction: “No evidence will be presented to you with regard to Valerie Plame Wilson’s status. That is because what her actual status was, or whether any damage would result from disclosure of her status, are totally irrelevant to your decision of guilt or innocence. You must not consider these matters in your deliberations or speculate or guess about them.”
Of course, Mrs. Wilson is the woman at the center of the CIA-leak affair. The case began with the allegation that the Bush White House illegally leaked her identity in an effort to get back at her husband, former ambassador Joseph Wilson, for his high-profile criticism of the administration’s case for war in Iraq. Everything in the investigation grew from that seed, and ultimately Libby, the vice president’s former chief of staff, was charged with lying to investigators who were trying to determine who had leaked Mrs. Wilson’s job status. And yet, in his instructions, Judge Walton told jurors that they were not to consider — not even to think about — Mrs. Wilson’s job status.
Walton repeated his admonition several times in the next few days, and then, on January 29, made a statement that seemed stunning in its implications, although it received virtually no attention outside the courtroom. Walton announced that not only did the jurors not know Mrs. Wilson’s status but that he didn’t know it, either. “I don’t know, based on what has been presented to me in this case, what her status was,” Walton said. “It’s totally irrelevant to this case.” Just so there was no mistake, on January 31 Walton said it again: “I to this day don’t know what her actual status was.”
Perhaps the judge’s position is the legally correct one; the reasoning is that Libby is accused of perjury, not of outing a covert agent, so Mrs. Wilson’s status isn’t germane. But in the real world of the courtroom, it’s the unavoidable topic. Why was it that everyone was so agitated in late 2003? Why was a criminal investigation started? Why did Libby appear before a grand jury? It’s impossible to answer those questions without talking about Valerie Plame Wilson — and her job.
So despite the judge’s instructions, the words “classified” and “covert” have come up again and again in the trial in conjunction with, well, you know who. A few examples:
‐ “Was there any discussion about whether [Mrs. Wilson] was covert or classified?” asked prosecutor Patrick Fitzgerald of witness Judith Miller.
‐ “I never in my wildest dreams thought this information would be classified,” said former White House press secretary Ari Fleischer, referring to Mrs. Wilson’s status.
‐ “The crime, as I understood it, had to do with people in the administration passing classified information to the press,” said former top CIA official Robert Grenier.
If any of those statements has led jurors to ponder whether Mrs. Wilson’s status was, in Fitzgerald’s words, “covert or classified,” then those jurors are violating the judge’s order. And Fitzgerald seems perfectly happy about it. After all, the blackout on Mrs. Wilson’s status keeps defense lawyers from highlighting Fitzgerald’s failure to charge anyone with outing her, and it allows the prosecution to suggest, without actually saying, that Libby and the Bush administration committed some sort of crime.
The judge’s ruling has made some arguments in court seem more than a little ridiculous. Last Thursday, for example, both sides spent a long time, out of the presence of the jury, bickering over how Fitzgerald will present evidence concerning Libby’s alleged motive to lie. Libby was afraid for his job, Fitzgerald theorized, after President Bush announced that anybody who leaked classified information about a CIA agent would be fired.
Wait a minute, protested defense lawyer Ted Wells. “The jury has been instructed that the issue of whether it was classified or whether she was covert will not be presented in this case.”
“I’m not going to tell the jury the information was classified,” Fitzgerald answered. “I will tell the jury that there was an investigation into whether the law was violated.”
And what law might that be? Sure enough, it’s the one barring disclosure of a covert agent’s identity. And the person in question is Valerie Plame Wilson. And the person being investigated is Lewis Libby. That’s what the case is about. Fitzgerald knows that. Wells knows that. The judge knows that. But the jury — shhhhhh.
It’s a bizarre situation — a CIA-leak trial without the CIA leak. And, at least under its present restrictions, without much hope for justice, either.
– Byron York, NR’s White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.