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This is the day that jury selection starts in the trial of Vice President Dick Cheney's former chief of staff, Lewis Scooter Libby. He's charged with five counts of perjury and obstruction of justice. His is the only prosecution to result from the celebrated Valerie Plame leak investigation.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: As is so often the case in major investigations, this case focuses on the old maxim: it's the cover-up, not the crime. In July, 2003, columnist Robert Novak revealed the identity of CIA operative Valerie Plame. Plame is the wife of former ambassador Joseph Wilson, who in 2002 was sent to Niger on behalf of the CIA to determine if Saddam Hussein was seeking to illegally buy uranium for use in an Iraqi nuclear weapons program. Wilson determined that Iraq had not been doing that, and when President Bush alleged the opposite in his speech - justifying the invasion of Iraq - Wilson went public. A week later, his wife's CIA identity was revealed in Novak's column.
After a complaint from the CIA, the Justice Department named veteran prosecutor Patrick Fitzgerald to conduct an independent inquiry. Two years later Fitzgerald announced a five-count indictment against Vice President Cheney's then-chief of staff, Lewis Scooter Libby, not for leaking Plame's name, but for lying to the Grand Jury and the FBI and for obstructing justice. The indictment charges that Libby, in fact, had been peddling information about Wilson's wife - not to Novak, but to other reporters - three weeks before the Novak column appeared. The indictment charges that Libby repeatedly lied when he told the Grand Jury and the FBI that rather than telling reporters about Plame's identity, the reporters had told him about her identity.
As Fitzgerald put it when he announced the indictment:
Mr. PATRICK FITZGERALD (Special Prosecutor): At the end of the day, what appears is that Mr. Libby's story - that he was at the tail-end of a chain of phone calls, passing on from one reporter what he heard from another - was not true. It was false. He was at the beginning of the chain of the phone calls, the first official to disclose this information, outside of government, to a reporter, and that he lied about it afterwards, under oath and repeatedly.
TOTENBERG: The case is tricky, observes white collar criminal defense lawyer Lawrence Barcella, because Libby contends he simply misremembered events.
Mr. LAWRENCE BARCELLA (Defense Attorney): The government's biggest problem is that everybody forgets things, and if the defense is successful at saying look, just because these things seem like a big deal, in the context of what Scooter Libby did every day, it was not a big deal.
TOTENBERG: Libby will say he was preoccupied with terrorist threats, Iraq, and emerging nuclear programs in Iran, Pakistan and North Korea.
Libby friend, and former Bush administration solicitor general, Ted Olson, reinforces the point.
Mr. TED OLSON (Former White House Official): Having been in government myself at a relatively high level, I can tell you it's true. If you are involved in high-pressure situations changing every few minutes all day long, from early in the morning until late at night, in the afternoon you don't remember exactly what you did in the morning.
TOTENBERG: Still, the defense will have to overcome a jury's natural inclination to think that an appearance before a Grand Jury, indeed more than one appearance, would focus the mind. Michael Kelly, the prosecutor who headed the 9-11 investigation, says the Libby memory defense could be a tough sell.
Mr. MICHAEL KELLY (Former Prosecutor): It wasn't just that he had one opportunity to tell his story and to think about what he was saying. He had several. And in every one of those, as it's alleged, he wasn't truthful.
TOTENBERG: Again, Lawrence Barcella:
MR. BARCELLA: Except that you only remember what you remember, whether it's in front of a grand jury, whether it's to a bunch of FBI agents, or you know, whether it's to your best friend asking you so what did you do three weeks ago on Thursday night?
TOTENBERG: The other problem for the prosecution is to convince a jury that a person would lie about something that wasn't a crime. After all, Libby is not charged with unauthorized disclosure of a CIA agent's identity. Nobody is.
Former prosecutor Michael Kelly:
Mr. KELLY: People still lie in the Grand Jury. They don't think they're going to get caught. The problem with that is that our system is really built on kind of a trust, that people are going to, when under oath, testify truthfully.
TOTENBERG: Or, as special prosecutor Patrick Fitzgerald put it in announcing the indictment:
Mr. FITZGERALD: The truth is the engine of our judicial system. If you compromise the truth, the whole process is lost.
TOTENBERG: The other problem that the prosecutor has in this case, is that while the prosecution will put on reporter-witnesses who will directly contradict Libby's story, still, Libby was not the source of the Novak column. The primary source was Deputy Secretary of State Richard Armitage, who readily admitted to Fitzgerald that he had blabbed Plame's name in what he thought was a casual exchange of gossip with Novak. And a second source was top White House aide Karl Rove, who initially denied it and then recanted that denial to the Grand Jury.
Prosecutor Fitzgerald will likely tell the jury that the Novak leak is irrelevant, but as Lawrence Barcella points out:
Mr. BARCELLA: The problem is the jury is going to want to know, even if it's irrelevant, because it's a mystery. It's something they're going to want to know and you need to tell jurors the answers to mysteries.
TOTENBERG: On the plus side for the prosecution, is that it has an array of witnesses who will contradict Libby's story. Among them, some journalistic stars, like NBC's Tim Russert; Judith Miller, the former The New York Times reporter who went to jail for two and a half months rather than disclose what Libby had told her; Time magazine's Matt Cooper; and possibly The Washington Post star investigative reporter, Bob Woodward.
These are all people who may be recognizable to the jury, people most lawyers think would come across well to the jury. What's more, there are corroborating notes taken by these reporters. On the other hand, some of the reporters have had memory problems themselves.
On the defense side, the key witness will be the defendant himself, and it's expected his one-time boss, Vice President Cheney. It is still unknown whether Cheney will testify in person or whether his testimony will be videotaped and shown to the jury. But people on both sides of the case say it would help Libby more to have Cheney there in person looking the jury in the eye.
Moreover, as former Bush administration Solicitor General, Ted Olson, observes…
Mr. Ted OLSON (Former Solicitor General): He comes across on television as someone who's more distant and reserved, and sometimes he appears to be kind of a harsh figure. He isn't that way in person.
TOTENBERG: The jury will almost certainly be unlike a jury in any other city. Most of its members will be government employees, and may have some sympathy for the defendants, says Lawrence Barcella.
Mr. BARCELLA: What is he? He was a government employee at the time too. And part of his defense is that he was doing a lot of things as a government employee and didn't remember - with perfect clarity or memory - some of the things that he was doing.
TOTENBERG: The courtroom players for this trial are all-stars themselves. Prosecutor Fitzgerald has convicted a long list of top government officials during his 19-year tenure in the Justice Department - most recently, winning a conviction of the former governor of Illinois. Defense lawyer Ted Wells was named the Lawyer of the Year by the National Law Journal. And Judge Reggie Walton - a Bush appointee - is an experienced judge respected for his no-nonsense approach to trying cases.
Nina Totenberg, NPR News, Washington.