Tears and Fears at Closing Arguments

Last week, Scooter Libby and his defense team decided not to call Vice President Dick Cheney to the witness stand. Today, prosecutor Patrick Fitzgerald brought him in anyway. “Let’s talk straight,” he said, sounding like John McCain. “There is a cloud over the vice president.” One of the unanswered questions of the Libby trial is whether, as Cheney’s aide, Scooter lied and obstructed justice to protect his boss from political embarrassment or legal jeopardy. In his closing argument, Fitzgerald said that it’s Libby’s fault those questions linger: “That cloud remains because the defendant lied about evidence and obstructed justice.”

The government built its case and Tuesday’s closing argument around what Fizgerald referred to as “the big slide,” a graphic displayed on courtroom screens with a picture of Libby at the center. Surrounding the defendant was a halo (or the opposite) of yellow arrows, pointing to eight boxes representing the people with whom Libby talked about undercover CIA officer Valerie Plame. A picture of Cheney in the upper left-hand corner stood for the first time Libby heard about Valerie Plame. (Libby disclosed that disclosure to the grand jury.) The other boxes represented the journalists and government officials who have contradicted Libby’s testimony about what happened during June and July 2003, the period of time that’s the focus of the trial.

Top and center in the graphic was a picture of Tim Russert (with a red border around it, in case anyone missed that he was a key witness). Libby testified to the grand jury that Russert told him Wilson’s wife worked at the CIA on July 10 and that the news struck him as if he were learning it for the first time. Russert says they had no such conversation.

For an hour and a half, prosecutor Peter Zeidenberg walked through each of the accounts that contradict Libby’s, arguing that together they proved that at Cheney’s behest, Libby was working intensely to learn about Plame and spill her CIA status to journalists to undermine her husband Joe Wilson’s criticism of the Bush administration and its justification for the Iraq war. Zeidenberg called Libby’s claim that he did not remember those conversations “ludicrous,” and charged that Libby “absolutely fabricates two conversations that never happened.” He argued that the former chief of staff had to concoct a story to protect himself and Cheney from the legal fallout for leaking Plame’s identity. Libby also wanted to avoid political fallout, in the event he was found to have been involved after the White House publicly said he wasn’t.

The prosecution also used Libby’s own words against him, playing snippets of his grand jury testimony to the packed courtroom. To show just how good Libby’s memory could be, the prosecution played grand jury testimony of his description of his phone call with Karl Rove, the one in which Rove talked about his conversation with columnist Robert Novak. Libby’s description had more detail than the one Novak gave on the stand last week.

As he listened to the government’s case, Libby often had the middle-distance stare of a man listing to a concerto.  His lead lawyer Ted Wells emoted for him. Wells punched his fist when he took the floor just before lunchtime, claiming that Libby’s misstatements had been badgered out of him. “They were beating on him,” said Wells of Libby’s grand jury testimony. “Time after time after time,” he said, again hitting palm with fist. Wells also pantomimed a rodent’s crawl at one point (to illustrate that he didn’t “crawl into the White House” to create evidence favorable to Libby). And to wipe away a prosecution assertion, he moved his arms back and forth quickly below the elbow, as if he was trying to make tiny snow angels.

When he settled down, Wells tried to match the clarity of the prosecution case with his own narrative. “It’s a case about different recollections between Mr. Libby and some reporters,” he said. In other words, a classic “he said/she said.” That gambit shaved away five of the prosecution witnesses who had contradicted Libby—the nonjournalists. “There’s a craziness to this case,” Wells also asserted, contending it was “madness” to try to convict Libby of a crime based on his foggy memory about fragments of conversations three and four months after they took place. Slim evidence, and potentially dire consequences. “My client’s life would be destroyed” if he were convicted, Wells said.

Next, the defense team spent the bulk of its three hours trying to dismantle the testimony of the three journalists, Matt Cooper, Judith Miller, and Tim Russert. Wells said their accounts had been as fuzzy as Libby’s and that the trial had become a lesson in the faultiness of memory. “What witness in here didn’t get something wrong? What witness?” Russert took a particular pounding, as Wells listed every inconsistency in his testimony. He read from an editorial by Russert’s hometown paper that said the Meet the Press star suffered “public memory lapses” after he forgot a conversation with one of its reporters. “Do not convict Scooter Libby on the word of somebody who suffers public memory lapses,” Wells urged the jury. Then he moved to emotion. “He is a good person,” he said of Libby, beginning to break up. “He has been under my protection for a month. I give him to you. Give him back to me. Give him back to me.” He ended in tears.

After the break, Fitzgerald did his best Wells impression. Just because the defense was “saying it loudly and pounding on the table,” didn’t mean its story was true. It wasn’t a he-said/she-said case,” he argued, “it is a he-said, he-said, she-said, he-said, he-said, she-said, he-said, he-said, he-said.” With each reiteration, he pointed to the pictures on his big slide. Could all of these people be mistaken in their recollections about Libby? “Is this the world’s greatest coincidence?” he asked.

Fitzgerald concluded by asking something of the jury, too. Libby “stole the truth from the political system,” the prosecutor said. “Give truth back, please do.”