After hours of lawyer wrangling Wednesday, the judge called the jury into the courtroom. All but one of them entered wearing a bright red T-shirt with a white heart over the left breast. Seated in their rows, they looked like a box of maraschino cherries. The juror who is a folksy North Carolina school teacher stood. Looking at the defense table, he said the 12 jurors took their duty seriously. “That being said,” he concluded, “Valentine’s wishes to you all.”
There was applause, like the tentative clapping at the end of a wedding. What to make of this? I think it’s good news for Scooter Libby. This has been a tedious case, with lots of little irritating details, and yet the jury is still upbeat. And uncynical. Valentine’s Day is the most contrived holiday in the calendar, and the jury seemed ready to press sugared hearts into the palms of strangers. People with this kind of cheeriness could be open to the human side of Scooter Libby—the dedicated if fabulously forgetful fellow portrayed by the defense. The one questionable juror is the art curator who in the backward style of old newsmagazines speaks. She wore no red shirt.
The main legal question of the day was whether the defense would be allowed to haul in NBC’s Tim Russert for a third day of testimony. Russert had already suffered through five hours of cross-examination, but Libby’s team wanted another chance to shred his credibility. Theodore Wells, Libby’s attorney, returned to Russert’s discussion with an FBI agent regarding his phone conversation with Libby, and then his later public stand against testifying. “He went around the whole country saying that he was this great protector of the First Amendment,” said Wells, previewing the assault he would make. Whether the jury would have been persuaded is not clear. But another day of trial coverage about whether Russert is a hypocrite definitely would have bruised his reputation. Fortunately for the Meet the Press host, the judge ruled against the defense. No Russert.
Instead, the defense was allowed to read into the record an affidavit from the FBI agent who first interviewed Russert. The agent’s account of his conversation with Russert contradicted Russert’s two days of testimony. Talking to the agent, Russert could not rule out the possibility that he had an exchange with Libby about Wilson’s wife (In court, Russert testified firmly that he hadn’t.) The agent also reported that “Russert acknowledged that he speaks to many people,” and that it was “difficult to reconstruct conversations several months later.”
You are not crazy to think that what you’ve just read sounds like it was written by the defense; it nicely mirrors Libby’s testimony about his own fuzzy recollections. On Tuesday, Fitzgerald even suggested that Russert had a lot on his plate and couldn’t be expected to remember everything. This caused members of the defense team to almost bark out loud, since that is the exact argument they are making about Libby.
The lawyers also fought over just how much of Libby’s busy schedule could be entered into the record. Much of it already had been, but his team wanted to call three of the officials who briefed Libby each day on national security threats. The point was to show how easily Libby could have have forgotten what he knew about Joe Wilson’s wife amid all the other more important matters. But since Libby is not testifying, Fitzgerald objected. The judge issued a compromise ruling and left it to the lawyers to work out the details.
Then the judge left the room. I should have, too. The discussions took forever. At one point a member of the Libby team flicked at her BlackBerry so intensely it looked like she was trying to defuse a bomb (or like she was totally killing on BrickBreaker). While lesser lawyers hashed out an agreement, prosecutor Fitzgerald wheeled his leather chair over to the defense table for a light chat. Eventually the whole controversy washed away. Both sides agreed that there would be no witnesses. Instead, Libby’s defense attorney would read into the record the list of items he was briefed on. The list was extraordinary: al-Qaida, Hezbollah, foiled attacks in Nairobi, Ethiopian terrorists, suspicious canvassing of U.S. buildings in Beruit.
As the list was read, Libby looked the saddest I’ve seen him. For most of the trial, he has been pretty peppy. He writes the occasional Post-it note to his counsel but otherwise seems at ease, listening, smiling at his wife, and laughing at the rare amusing moments. The list must have been a downer, though. All that top secret information he’ll never get to hear again, regardless of the trial’s outcome.
Just after 4 p.m., the defense rested and the day dribbled to a close. The air has come out of this case so completely I wouldn’t be surprised if the court reporter finished the day’s entry by typing: pffffft.
Before excusing the jurors for the long weekend, the judge reminded them once again to stay away from the newspapers and television before Tuesday’s closing arguments. In doing so, he offered Libby one more possible valentine. The papers should be ignored, the judge noted, because sometimes journalists get it wrong.