The prosecution in the I. Lewis “Scooter” Libby trial is resting its case after the testimony of NBC’s Tim Russert. Then it’s Libby’s turn to present evidence. The big question is, will the defense call Vice President Dick Cheney to the stand?
Last week I was convinced the jury would not be hearing from Cheney, particularly after Libby filed a pleading referring to the vice president only as a “potential” witness and backing off earlier statements indicating Libby would testify in his own defense.
Now, I think the jury will hear from Cheney, with regard to Libby’s memory and motive.
The defense wants to show that any Libby mis-statements to investigators and grand jurors about where he first learned about Valerie Plame Wilson’s employment with the CIA and to whom he disclosed it were due to faulty memory, not intentional lies. Libby was busy, consumed with heavy issues of national security and had no reason or motive to lie, his lawyers will argue.
Russert was the last prosecution witness whose testimony conflicts with Libby statements to investigators and grand jurors. On cross-examination, Libby’s lawyer tried to cast doubt on Russert’s memory. Somebody is wrong. Special Prosecutor Patrick Fitzgerald contends it’s Libby who is lying and not simply mistaken.
Memory. That’s what this case comes down to for Libby. He has two arguments here. The first is that, since the memories of virtually all the witnesses as well as Libby’s have been shown to be faulty, that alone constitutes a reasonable doubt that anyone could recall events exactly months or more after they occurred. Like others, Libby didn’t intentionally lie, he was just mistaken. He doesn’t need Cheney or any defense witnesses for that argument.
The second, more subjective defense is Libby was so busy with important national security issues, he forgot from whom he first learned of Mrs. Wilson’s employment and to whom he told it.
The judge ruled at the beginning of the trial that Libby would have to testify in his own defense to introduce evidence to show how busy he was. If Libby doesn’t take the stand, the next best evidence would be from Cheney, who could testify to how snowed under with critical national security issues Libby was.
Cheney might even display the same inability to recall details of who learned what when, maintaining that he and Libby were concerned with disputing the substance of allegations by Wilson’s husband.
Cheney’s inability to recall details might, the Libby defense hopes, cause jurors to view him, and Libby as ordinary humans, not liars.
The second reason the defense would like to call Cheney is motive, by buttressing an argument made by Libby’s lead attorney, Ted Wells, in the trial’s opening statements. Wells alleged that White House officials had thrown Mr. Libby “under the bus” in an effort to protect senior Bush advisor and Republican political strategist Karl Rove. Libby was a scapegoat, not a liar.
There’s been a dearth of evidence presented so far to support that theory. Thus the defense might hope to call Cheney to testify to how he interceded with former White House press secretary Scott McClellan to get him to clear Libby the way he had earlier cleared Rove.
Trial attorneys know you never make a promise in opening argument you don’t fulfill before the end of the trial. The other side will nail you with it in closing. I can hear Fitzgerald now, if Cheney does not testify, mocking Wells’ assertion that Libby was thrown under the bus.
The problem for Cheney is that if he takes the stand, Fitzgerald won’t be restricted to these two areas, memory and motive, in his cross-examination. There’s a lot of dirty laundry about how the White House, and in particular, the Office of the Vice President, tried to manipulate media reports about Wilson’s trip to Niger and his attack on the Bush administration’s claims that Iraq was attempting to acquire weapons of mass destruction. It will all come out in the wash.
If Cheney testifies, he’s going to learn an important lesson. As Bob Dylan once sang, “Even the [vice] president of the United States must sometimes have to stand naked.”
Jeralyn Merritt is a member of The Examiner Blog Board of Contributors and blogs at Talkleft.com.
