Politics & Policy

Why Libby Didn’t Testify

What his grand-jury testimony told the jury about Libby -- and about Patrick Fitzgerald.

The perjury and obstruction trial of Lewis Libby is limping to a conclusion today as prosecutors and defense lawyers haggle over the judge’s final instructions to the jury. Delayed by Monday’s President’s Day holiday, those instructions will be given to the jury next Tuesday, along with closing arguments from both sides. After that, the jury will finally begin its deliberations.

For many observers, especially those who see the trial as punishment of the Bush administration for going to war in Iraq, the days in court end with disappointment that neither Vice President Dick Cheney nor Libby himself will testify. “I was damn near brokenhearted,” wrote one anti-administration blogger upon hearing the news.

For the defense, the key decision was the one to keep Libby off the stand; once that was decided, there was no reason for Cheney to appear. The vice president would likely have testified about Libby’s state of mind in May, June, and July of 2003, when the Bush administration’s case for war in Iraq was under attack by former ambassador Joseph Wilson. The Libby defense has maintained that he, Libby, was tremendously busy at the time and might well have forgotten about the particulars of how he learned, and then forgot, about the identity of Valerie Plame Wilson. With Libby not testifying, it followed that Cheney wouldn’t either.

But what about the decision — the key decision in the entire trial — to keep Libby off the witness stand? For the defense team, the question never hinged on whether the jury needed a chance to hear Libby talk about his role in the CIA-leak affair. The question was whether the jury needed another chance to hear Libby talk about his role in the CIA-leak affair. And the answer was: Eight hours is enough.

Eight hours refers, of course, to the length of Libby’s earlier testimony to the grand jury. The trial jury heard a recording of it all — a laborious process that took place over three days. So by the time Libby had to decide whether to testify, the jury had already heard a lot of Lewis Libby testifying.

But — and this is a point largely unexamined by trial observers — jurors also heard a lot of Patrick Fitzgerald questioning Lewis Libby. And Libby’s defenders are betting that jurors took from those recordings an impression not only of the defendant but of the prosecutor. And the impression that Libby’s supporters hope jurors will have is that of a prosecutor trying too hard to find a crime where there was none.

Consider the exchange between Fitzgerald and Libby that took place before the grand jury on March 5, 2004. Fitzgerald was trying to find out who told Washington Post reporter Walter Pincus about Valerie Plame Wilson. He seemed to think that Libby was the man.

“Now, did you talk to Mr. Pincus at the Washington Post?” Fitzgerald asked.

“Yes sir, I did,” said Libby.

“Do you know if you talked to Mr. Pincus about Wilson’ s wife?”

“No,” said Libby. “I, I believe I did not, sir.”

“Can you rule out the possibility that you told Mr. Pincus about Wilson’s wife during that conversation?” Fitzgerald pressed.

“I have no recollection of having discussed it with Mr. Pincus and I don’t think I did,” Libby repeated.

“Can you rule out the possibility that you did, in your mind?”

“I don’t think I did.”

Libby’s answers did not satisfy Fitzgerald. “I understand that it’s very clear that you don’t think you did,” he told Libby. “I’m just saying, can you rule out that you didn’t do that when you spoke to Mr. Pincus?”

“I don’t quite know what to say, sir,” Libby answered, with apparent frustration. “I don’t think I did. I have no recollection of doing it. It’s not what I set out do. I don’t believe I did. Just ‘rule out the possibility’ is an odd phrasing to me. I’m, I’m reasonably certain I did not.”

Fitzgerald still wasn’t satisfied. “Let me give you an example,” he said to Libby. “The President of the United States called you in and said, this is super-super secret that we can’t even tell you the clearance level this is at, and this involves the most sensitive intelligence gathering matters ever to be conducted by the United States. And you went and had a meeting with a reporter afterwards, and we said, do you recall telling that person that information. You could say, not only do I not remember, there’s no way I could have done that. And I guess, now I’m asking you here, you indicate that the information about Wilson’s wife you didn’t understand to be a prohibition on it. So I’m simply asking that, even though you think you didn’t talk with Pincus about it, is it possible that you did?”

“Well, I didn’t think it was under the super-super secret categorization,” Libby answered. “So in that part of the analogy, it was nothing like that about what he said. But as I say, I don’t think I talked to Mr. Pincus about it.”

“Is it possible you did?”

“Best of my recollection of the conversation, no. I did not talk to him about it.”

A few days after hearing a recording of that exchange, jurors in the trial heard Pincus himself testify. Pincus said he was indeed told about Mrs. Wilson – by Ari Fleischer. Fleischer, the former White House spokesman to whom Fitzgerald gave immunity in exchange for testimony, had already appeared before the grand jury by the time Libby testified, but apparently did not tell prosecutors that he had told Pincus. He flatly denied it in testimony at Libby’s trial, leaving the jury to decide whose version of events is accurate — a question that in any event does not involve Libby.

While the jurors heard Fitzgerald grilling Libby about a leak he did not commit, they also heard Fitzgerald not asking Libby about the first known leak of Valerie Plame Wilson’s identity — by former top State Department official Richard Armitage to the Washington Post’s Bob Woodward on June 13, 2003. Woodward’s name does not appear anywhere in the transcript of Libby’s eight hours of testimony before the grand jury. That is because at the time Fitzgerald didn’t know about the leak; Armitage, who told the grand jury that he leaked Mrs. Wilson’s identity to Robert Novak, failed to mention the earlier leak to Woodward. That omission led Fitzgerald, at his October 2005 press conference announcing Libby’s indictment, to make his famously erroneous statement that “Mr. Libby was the first official known to have told a reporter when he talked to Judith Miller in June of 2003 about Valerie Wilson.”

The grand-jury recording also revealed Fitzgerald exploring the possibility that a different leak — that of information contained in the National Intelligence Estimate concerning reasons for war in Iraq — might have been a criminal act. Libby testified that the portions of the NIE he leaked to Judith Miller had been specifically authorized by the president, through the vice president, and with the approval of the vice president’s counsel. (The leak occurred a short time before the entire NIE was declassified.) Nevertheless, Fitzgerald, who appears to have been trying to expand his investigation beyond the original Valerie Plame Wilson leak, spent an inordinate length of time during both of Libby’s grand-jury appearances asking him about the NIE.

The jurors heard all of it during those eight hours spent listening to the grand-jury recording. Press accounts have focused on the sections of Libby’s testimony in which he allegedly lied to the grand jury. But the entirety of Fitzgerald’s grand-jury questioning might leave jurors with a more nuanced impression: that of a prosecutor who had received faulty information, or incomplete information, from other witnesses and who looked to Libby — and not those who had omitted or failed to remember key acts during their testimony — as the suspected criminal. The grand-jury tapes reveal a prosecutor who had had sand thrown in his eyes — to use Fitzgerald’s famous image — but it had not been thrown by Lewis Libby.

 – 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.

Byron York is a former White House correspondent for National Review.

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