There’s always been a tension in the CIA-leak investigation, a tension between the narrow perjury and obstruction case against Lewis Libby — Did he lie about his conversations with Tim Russert and Matthew Cooper? — and the larger question of whether the Bush White House somehow broke the law in responding to former ambassador Joseph Wilson’s attacks on the administration’s case for war in Iraq.
At times in the last year, it appeared that prosecutor Patrick Fitzgerald was doggedly trying to stay focused on the narrow case against Libby, while Libby’s lawyers were trying to broaden the case to include the war over the war. But at the federal courthouse in Washington Tuesday, during closing arguments in the Libby trial, the roles were reversed. In his closing arguments, Libby’s defenders attacked the credibility of the witnesses against Libby, while Fitzgerald spoke darkly of the involvement of Libby’s old boss, Vice President Dick Cheney.
On a day that had been anticipated for quite a long time, both sides’ performances were uneven. Chief defender Ted Wells was erratic, sometimes appearing to defend his own honor more than his client’s, and sometimes brilliantly dismantling the credibility of key prosecution witnesses. For his part, Fitzgerald seemed overcaffeinated and overreaching, perhaps overwhelming the jury with the minutiae of the case. How their closing summations will play with jurors is anybody’s guess.
What became unmistakably clear, though, was Fitzgerald’s fundamental theory of the case. As much as the prosecutor talked about Libby’s alleged lies, it was obvious that Fitzgerald, on Tuesday as well as throughout the investigation, believed his chief target was — and perhaps still is — Dick Cheney.
“What was all the hullabaloo about?” Fitzgerald asked as he discussed the reaction in the vice president’s office to Wilson’s attacks, which had begun after the CIA sent him on a fact-finding trip to Niger. “The question of who sent Wilson was hugely important, and they wanted everybody to know it wasn’t the vice president.”
That was undoubtedly true; testimony at the trial established, and the prosecution conceded, that the vice president’s office did not, in fact, send Joseph Wilson to Africa. And since that was the case, it was also true that Cheney, and Libby, wanted everyone to know that the vice president’s office had not sent Wilson to Africa. Some observers might ask, “What’s wrong with that?” But the undertone of Fitzgerald’s argument, and, in retrospect, of his entire investigation, was that a simple effort at political pushback — the bid to discredit Wilson — was somehow a criminal act.
Fitzgerald spent a long time going back and forth between Cheney’s handwritten notes on a copy of Wilson’s New York Times op-ed and a set of talking points developed by the vice president’s office. They tracked closely with each other. The talking points said things like, “The vice president’s office did not request the mission to Niger,” and “The vice president’s office was not informed of Joe Wilson’s mission,” and “The vice president’s office did not receive a briefing about Mr. Wilson’s mission,” and “The vice president’s office was not aware of Mr. Wilson’s mission until this spring, when the press reported it.” And — here Fitzgerald’s voice dripped with accusation — “It is not clear who authorized Joe Wilson’s trip to Niger.”
Fitzgerald’s presentation proved, if anyone doubted it, that the vice president’s communications staff endeavored to make points that the vice president wanted made. But for Fitzgerald, it was part of something quite sinister. “The question of who sent Wilson is important,” Fitzgerald told the jury. “It’s the number-one question in the vice president’s mind.”
“There was a focus on who sent Wilson on this trip,” Fitzgerald continued. “There was an obsession with Wilson.” And that, the prosecutor charged, led to an obsession with revealing the role that Wilson’s wife, former CIA employee Valerie Plame Wilson, played in sending her husband to Africa. “Any effort to tell you that the wife was just separate, an unrelated matter, is just an effort to take your attention away from what the facts are,” Fitzgerald said. “Wilson’s wife was an answer, a fact, an argument.”
It was all led by Cheney, Fitzgerald charged. And it all sounded quite ominous. An hour or so earlier, Wells had remarked on the prosecution’s tendency to focus on the vice president, telling the jury, “The government in its questioning really tried to put a cloud over Vice President Cheney.” When it was his turn to speak, Fitzgerald quickly picked up on Wells’s image. “They say we’re putting a cloud over the vice president,” Fitzgerald said. “Let’s talk straight. There is a cloud over the vice president.”
Among other things, Fitzgerald charged, with a gravity prosecutors reserve for discussing nefarious acts, Cheney had scribbled in the margins of Wilson’s Times op-ed. “He wrote those notes,” Fitzgerald told the jury. Couldn’t they see? Fitzgerald seemed to be saying. Couldn’t jurors see the criminality? Just look at the talking points. “There is a cloud over what the vice president did that week. We didn’t put that cloud there, and that cloud remains because the defendant has obstructed justice and lied about what happened,” Fitzgerald said. “The cloud is something that we just can’t pretend isn’t there.”
And the cloud wasn’t just any cloud, Fitzgerald argued. It was a killer cloud. As he built up to the climax of his presentation, Fitzgerald told the jury that exposing Valerie Plame Wilson’s role in Joseph Wilson’s trip to Africa could have gotten her killed. And defendant Libby — remember him? — knew it at the time.
Fitzgerald argued that Libby must have known that the subject of Mrs. Wilson’s role was important — and therefore it is unlikely that he forgot about it, as he contends — because he was “discussing something with people that could lead to people being killed.” “If someone is outed,” Fitzgerald said, “people can get in trouble overseas. They can get arrested, tortured, or killed.”
At that point, the defense objected, in part because Fitzgerald had just bulldozed over one of the main trial rules set down by Judge Reggie Walton. On the first day of the trial, Walton told the jury, “No evidence will be presented to you with regard to Valerie Plame Wilson’s status. That is because what her actual status was, or whether any damage would result from disclosure of her status, are totally irrelevant to your decision of guilt or innocence. You must not consider these matters in your deliberations or speculate or guess about them.”
Walton reminded the jurors of that at several points during the trial, adding a couple of times that even he didn’t know Mrs. Wilson’s status. Indeed, Fitzgerald never presented any evidence to show that her status was covert, classified, or otherwise. And of course, after three years of investigation, Fitzgerald did not charge anyone with leaking Mrs. Wilson’s identity. Yet throughout the trial, Fitzgerald attempted to create an atmosphere of accusation, an accusation that Libby and Cheney and the Bush White House criminally exposed a covert CIA operative. On Tuesday, he reached for the big payoff.
The problem was, of course, that he had no proof of what he was saying. After the defense objection, Fitzgerald stressed that he wasn’t telling the jury that any of that happened, only that it could have happened. And, more importantly, that Libby might have thought it could have happened. And if he did, that would make it important, wouldn’t it? So it would be something he wouldn’t forget, right? Fitzgerald told the jurors they should think about this imagined “people being killed” scenario to understand Libby’s “state of mind,” but they should not draw any conclusions about “whether it’s true or false.”
When Fitzgerald finished, Judge Walton felt the need to step in. “I’m going to give you another cautionary,” he told the jury. “The truth of whether someone could be harmed based upon the disclosure of people working in a covert capacity is not at issue in this case. Remember what I have told you several times. Mr. Libby is not charged with leaking classified information.” And with that, the day ended.
It’s a commonplace observation of the legal system that a trial, whatever the lofty rhetoric of judges and lawyers, is not necessarily a search for truth. If anyone needed any more proof of that, it was on bold display Tuesday at the Libby trial.
– 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.