Today the perjury and obstruction trial of Lewis Libby, Vice President Dick Cheney’s former chief of staff, begins in federal court in Washington. The opening arguments follow a week of wrangling over seating a jury, a fight that went on significantly longer than either prosecution, defense, or judge estimated. And nearly every scuffle in the courtroom, as prosecutor Patrick Fitzgerald and chief defense lawyer Ted Wells argued over each prospective juror’s possible bias, served to emphasize the intensely political nature of the case. Does this potential juror believe Cheney is a liar? Does that one think the Bush administration can’t be trusted? What do they think about the case for going to war in Iraq?
As the selection process went on, it became clear that the biggest difference in the prosecution and defense approaches to the case can be summed up in this question: Does the most impassioned political argument of the day — the war — lie at the periphery of the case, as Fitzgerald contends, or at its heart, as Libby argues? By the end of
voir dire, it was hard to deny that Libby’s argument is the more persuasive. No matter how much the prosecutor tries to frame the case as a simple question of lying under oath, this case is about the war, about people’s feelings about the war, and about the administration’s credibility over the war.
But it will be decided by a group of people for whom the war, and politics, is not a matter of enormous concern. Jury selection served to highlight just how many people there are in the District of Columbia who aren’t terribly interested in what goes on in the White House, the Pentagon, and Congress. For example, on Monday lawyers considered (but ultimately rejected) a woman who, in questioning by Fitzgerald and Libby attorney William Jeffress, said she did not read any newspapers (she and her husband cancelled their subscription to the
Washington Post more than two years ago when they had a baby and no longer had time to read the paper). She also said she watched no news on television. “I come home from work and do bottles and diapers,” she said.
Given that, she wasn’t exactly up on the burning issues of the day. “Are you familiar with the controversy about the reasons given by President Bush for going to war in Iraq?” Jeffress asked. “I don’t want to sound stupid,” the woman began before admitting that the answer was no, that she was pretty much unfamiliar with the whole thing.
She wasn’t alone, although other jurors who made the final cut had a few more political opinions but managed to convince both sides that they could make a fair judgment — or, at least, that they could make a fairer judgment than other potential jurors. How will they react to the prosecution’s contention that Libby was part of a wider Bush administration effort to leak Valerie Plame Wilson’s identity in order to smear her husband, former ambassador Joseph Wilson, for his criticism of the case for war? It’s just not clear.
In part, these nonpolitical types will make their decision on more personal issues. Time after time during jury selection, Libby’s lawyers tried to elicit their feelings on their memory and whether it is as reliable as they sometimes believe. “Have you ever had a situation where you and a good friend had a disagreement about something that happened in the past, and you thought it happened one way and your friend thought it happened another way?” Wells asked one juror, repeating a question asked of all.
“Yes,” the man answered.
“And did both of you hold your recollections in good faith?”
“Yes.”
“And both of you were confident in your recollection?”
“Yes.”
“And it turned out that one of you was right and one was wrong?”
“Yes.”
The message was clear, if unspoken: The defense wants to convince jurors that Libby might remember something one way, and Tim Russert might remember it another. Nobody is lying.
Fitzgerald pushed in the other direction. “If you were to hear an account of events, and you were convinced that that account of events was wrong, how would you go about determining what was true or not?” he asked.
“I guess other people saying that that’s the way it happened or not,” the man answered. “It’s difficult to say, I guess.” Other prospective jurors said they would assess whatever evidence they could find and try to come up with the right answer.
And then there was the question of how to interpret conflicting recollections. “Most of the time somebody is lying,” said one prospective juror. Asked what would cause them to lie, she answered, “If they played a bad part in the situation.” Jeffress asked, “You mean, if they played a bad part in the situation, they’d want to deny it?” “Yes,” the woman answered.
Another woman — the one who had cancelled her subscription to the
Post — was far more lenient. “I would have to see both sides,” she said before adding that she would view the conflict “probably as a mistake…an honest mistake.” She continued: “I don’t consider anyone a liar. That’s a pretty strong word.” At that point, one could almost sense the Libby camp rooting, unsuccessfully as it turned out, for her to survive the final cut.
Day One of the trial will feature the judge’s instructions to the jurors. Those instructions were drafted in consultation with both prosecution and defense, and as part of that, the Libby team submitted perhaps the most succinct statement of its view of the case, in the form of suggested instructions. “Mr. Libby denies that he intended to or did obstruct justice, make intentionally false statements to the FBI, or make intentionally false statements to the grand jury,” Libby’s team argued. He told the truth to the FBI and the grand jury, Libby said, and if what he said wasn’t correct, it was because his memory failed, because he had no notes of the conversations about which he was questioned and wasn’t allowed to refresh his recollection by talking to others. “He contends that any conversations he had about Ambassador Wilson’s wife during June and July 2003 were so brief, and the information he received so incidental to the issues he was dealing with, that he honestly did not recall them when he was questioned about them.”
Furthermore, Libby’s lawyers argued, “He contends that the amount and importance of intelligence information he was receiving and responding to during June and July 2003, and the number of vital issues of national security he was dealing with on a daily basis, dwarfed any information about Joseph Wilson’s wife’s employment.” For that reason, “it is natural that he did not recall, or recalled incorrectly, brief conversations about the employment of Mr. Wilson’s wife when the FBI’s investigation began in October, and when he testified to the grand jury the following March.”
Libby might have a hard time convincing jurors that the Wilson case simply wasn’t a big deal to him. The evidence revealed so far suggests that Joseph Wilson, especially after he published his high-profile
New York Times op-ed attacking the Bush case for war, was a major topic of interest in the vice president’s office during the days in question. But Libby has a point about the brevity of the conversations from which the entire case stems. Fitzgerald’s entire prosecution is based on a couple of conversations in which Libby is said to have said things like, “Yeah, I’ve heard that, too,” when reporters brought up the fact that Valerie Plame Wilson worked for the CIA and had a role in sending her husband to Niger. From that tiny seed grew the entire case. Now it’s time to test Fitzgerald’s case.
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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. 
