Guess Who's Not Testifying?

Dispatches From the Scooter Libby Trial

Guess Who's Not Testifying?

Dispatches From the Scooter Libby Trial

Guess Who's Not Testifying?
Who's winning, who's losing, and why.
Feb. 13 2007 11:08 PM

Dispatches From the Scooter Libby Trial


John Hannah. Click image to expand.
John Hannah

10:30 a.m.: I am in a dentist's chair, getting my teeth examined. (Oh, thanks for asking, that's very sweet of you—turns out they're fine but I could floss better.)

Seth Stevenson Seth Stevenson

Seth Stevenson is a frequent contributor to Slate. He is the author of Grounded: A Down to Earth Journey Around the World.

In my stead, we sent my Slate colleague Christopher Beam to observe the trial's morning action: Witnesses Jill Abramson (a New York Times editor) and John Hannah (national security adviser to Vice President Dick Cheney).


Abramson was here to cast doubt on earlier testimony from Judy Miller (the New York Times reporter who claimed Scooter Libby leaked to her). Miller testified that she suggested a story about Valerie Plame at a meeting with Abramson. Today in court, Abramson says she can't remember Miller ever raising the issue. Under cross-examination, Abramson admits that "it's possible that I sometimes tuned her out." (In retrospect—given how wrong much of Miller's reporting about WMD turned out to be—tuning her out was perhaps the wisest course of action.)

John Hannah, who worked with Libby in the vice president's office (and took over some of Libby's duties after he resigned), was called to bolster the defense's portrayal of Libby as a busy, forgetful guy—too busy and forgetful to accurately testify before a grand jury. On the busy front, Hannah says that Libby was effectively working two jobs (as Dick Cheney's chief of staff and national security adviser) while dealing with mini-crises all over the globe. On the memory front, Hannah testifies that he'd sometimes tell Libby something in the morning, only to have Libby repeat it back to him later that day—forgetting that Hannah was the source.

Slate's Chris Beam notes that this sounds like a scene from the movie Memento. (Bailiff, please check if Scooter has "Remember Joe Wilson" tattooed on his hand.) Chris also points out the extraordinarily high moustache ratio among Libby's defense team. Libby attorneys Ted Wells, William Jeffress, and John D. Cline all sport upper-lip whiskers. Must be something the jury consultants were pushing.

2:39 p.m.: I make it back to the courtroom in time for the afternoon session. And right off the bat, I'm rewarded with a major announcement. Wells tells us that, after consultation over lunch, the Libby team has decided they "do not intend to call the vice president" and have "released him as a potential witness."


Apparently, Cheney was scheduled to testify Thursday. But no more. This is a crushing blow. I couldn't wait to see Cheney in the witness box, facing cross-examination from prosecutor Patrick Fitzgerald. I was fully expecting a charged and confrontational, "You can't handle the truth!" moment. (Did you order the leak? Did you order the leak!? "You're goddamn right I did!") And now I'll never see it. On the other hand, I also won't be forced to restrain myself from shouting, "Go frack yourself, Mr. Cheney!" as he takes the stand.

2:42 p.m.: But wait, there's more! Wells now says that "after consulting with us and his wife," Scooter Libby will not testify, either. The judge has Libby stand up and acknowledge that he understands what he's doing. Libby says he does, but in a voice so quiet that I couldn't hear exactly how he put it. (Neither could the reporter next to me. We'll have to check the transcript later.)

So, that's pretty much the trial. The defense could rest as soon as tomorrow. Who have they called on Libby's behalf? Several reporters who say Libby never told them about Valerie Plame (though the government never claimed otherwise). An editor who says she doesn't think Judy Miller asked her to do a story on Plame. And a Libby co-worker who says that Libby was preoccupied and absent-minded.

It's possible they'll call someone else Wednesday. But as things stand, I can't see how they've done enough to dent the government's case. Scooter's decision not to testify seems like it could be damaging. Here's his chance to go before the jury and clear his good name, and he's not going to take it? The jurors, fairly or not, will no doubt ask themselves what he's afraid of. (As for the decision not to make Cheney take the stand: Perhaps Scooter's betting that loyalty will buy him a pardon? Or perhaps, given Cheney's approval numbers—now hovering dangerously near the tweens—it was thought that he'd do more harm than good.)


Frankly, if I were deciding Scooter Libby's fate, I think I'd have a hard time letting him off. There's a slew of witnesses contradicting him. The tapes of his grand jury testimony were awfully damning, especially when Libby's voice got many decibels quieter at the moment it seemed he'd been caught in a lie by Fitzgerald. The prosecution has brought forth both a motive and a lot of evidence.

Can I imagine a scenario in which Scooter is innocent, and is getting a rotten deal? Let's see:

First, there's the clear dispute between Scooter and Tim Russert. Libby says that Russert mentioned Valerie Plame (and said "all the reporters" knew about her), while Russert says they never talked about Plame (and that Libby just called him to complain about something on Hardball). If Scooter's correct, then Russert is either misremembering or lying.

I can't buy that Russert is lying under oath—and possibly sending Scooter Libby to jail—when Russert has no obvious motive to do so. (Others imagine a vast NBC conspiracy, but I find this far-fetched. Anyway, the jury has been given almost zero evidence to support the conspiracy theory.)


What if Russert's misrecollecting? It would be tragic. Russert's testimony was by far the most dramatic, easy-to-understand courtroom evidence against Libby. But even if Russert is forgetting, the jury still has this to contend with: Libby claimed he was "taken aback" when Russert mentioned that Joe Wilson's wife worked at the CIA. Libby said this information was "something he was telling me that I was first learning."

To believe that, you'd have to believe that 1) Libby forgot that Cheney had already told him about Plame (Libby says he did forget their conversation, and remembered it only when he saw it in his notes), and 2) that Ari Fleischer, Cathie Martin, and multiple other prosecution witnesses were all lying or misremembering when they described conversations with Libby (about Plame) that happened before the Russert phone call.

That's a lot of people all lying or misremembering in the same way—a way that hurts Scooter Libby's case. And it strains credulity, to borrow a term from the lawyers, to imagine that Libby accidentally forgot all of these many conversations. If there's one thing that's clear to me, it's that Libby knew full well who Valerie Plame was—long before Tim Russert did or did not utter anything about her.

Of course, juries are notoriously impossible to predict. And remember, Michael Jackson and O.J. Simpson never took the stand, yet it didn't seem to hurt them one bit. Also, Scooter's lead representative, Ted Wells, is a superb defense attorney, with a flair for righteous outrage. (Though he's no Tom Mesereau—the brilliant, white-maned litigator who helped Michael Jackson beat a molestation rap. And I think I'd take an in-prime Johnnie Cochran over Wells, too.) Perhaps today's announcement that Cheney and Libby won't testify is a bold strategic move, made out of confidence that the defense is winning. Or maybe it's a realization about sunk costs.