Judge: Libby Defense Misleading

Defense Attorneys Rest Libby's Case
Faulty Memory, Not Deliberate Lies, Blamed for Disputed Statements in CIA Leak Probe

By Amy Goldstein and Carol D. Leonnig
Washington Post Staff Writers
Thursday, February 15, 2007; A03

Attorneys for I. Lewis "Scooter" Libby rested their defense in his perjury trial yesterday after giving jurors a stripped-down version of their case that the vice president's then-chief of staff was too preoccupied with sensitive national security issues in 2003 to remember conversations he had about undercover CIA officer Valerie Plame.

Shortly before testimony ended in the five-week trial, the presiding judge blocked defense attorneys from presenting the testimony of their proposed final witnesses -- CIA employees who briefed Libby each day on crises and terrorist threats around the world.

Defense attorneys wanted the briefers to provide the jury with vivid details of the confidential intelligence on foreign affairs that Libby was juggling. Their testimony, which would have relied on classified information that the judge had approved for admission at the trial, was intended to reinforce the central argument of Libby's defense: that he did not deliberately lie to investigators about his role in the disclosure of Plame's identity to journalists but inaccurately remembered it because it was trivial in comparison with the weighty issues before him.

But U.S. District Judge Reggie B. Walton sided with prosecutors, who argued that it would be unfair to allow such testimony because Libby had decided not to testify and could not be cross-examined.

"With him not testifying, I think the landscape has changed . . . significantly," Walton said outside the presence of the jury. "I don't think it would be appropriate in any way" for jurors to hear about Libby's briefings unless prosecutors can quiz the defendant about their significance to him, Walton said.

Libby is charged with lying to investigators about his role in the leak of Plame's name. Prosecutors contend that he deliberately obscured his role in a White House campaign to discredit Plame's husband, former ambassador Joseph C. Wilson IV, by suggesting that nepotism was the reason the CIA dispatched Wilson to Africa in 2002.

Wilson was sent to Niger to investigate reports that Iraq had tried to buy nuclear material there. He concluded that the reports were false and later accused President Bush of twisting his findings to justify the war in Iraq.

Libby's attorneys contend that Libby merely suffered from a faulty memory.

Instead of putting the briefers on the stand, defense attorney John Cline read jurors a lengthy list, approved by both sides, of the issues that CIA briefer Craig Schmall shared with Libby on the morning of June 14, 2003. Schmall testified earlier in the trial that his notes indicate that was the day Libby mentioned Wilson to him.

Cline also read jurors a list of the national security issues confronting Libby between May 2003, when Vice President Cheney first told him about Plame, and March 2004, when Libby appeared before a federal grand jury investigating the leak of her identity.

Another defense attorney read jurors portions of a Wall Street Journal editorial and two National Review articles that were in Libby's files. All three reinforced the defense's contention that Libby did not regard Plame's identity as secret.

A third defense attorney read parts of a report on an interview with Tim Russert, NBC News's Washington bureau chief, conducted by the FBI agent who once headed the leak investigation. The report contained nuances that differed from the testimony last week of Russert, the prosecution's most pivotal witness.

The defense ended its case less than three days after it began. The prosecution completed its rebuttal case within minutes. On Tuesday, Libby's attorneys announced that they would not call the two men they had indicated would be their star witnesses: Libby and Cheney.

Walton told jurors that prosecutors and defense attorneys are scheduled to deliver the closing arguments in the case on Tuesday and that the jury probably will begin its deliberations the next day.