No Cheney, No Libby For the Defense

Imagine this. Something in Washington, D.C. being completed early! We just learned that Vice President Dick Cheney will NOT testify at I. Lewis "Scooter" Libby's perjury and obstruction of justice trial in federal court in Washington. More importantly, we also are learning that Libby himself will not testify -- a strategic decision by his lawyers that has cut the defense case down to its nub. Closing arguments now are tentatively scheduled for next Tuesday -- several weeks before anything thought this circus of a trial would end.

What does it all mean? One thing it means is that Libby's attorneys clearly felt that the risk of bringing Cheney and Libby to the stand were too great to offset whatever reward they may have offered in the way of testimony. This isn't too surprising in Cheney's case -- everyone knows he was going to say his former assistant was/is a good guy and was working on monumentally important things inside the White House. But it sure will come as a disappointment to jurors when they don't see Libby himself take the stand to explain how it could be that he forgot what was what when questioned under oath about Valerie Plame Wilson.

Yes, I know. Libby has a right not to testify. But in a case like this, where the defense is that he made a simple mistake and had no criminal intent, and where the facts otherwise are not much in dispute, it is a big, big deal that Libby will not face jurors to plead his case. So far, precisely one defense witness, John Hannah, has told jurors that Libby had a bad memory. Is Hannah's word, alone, enough? I don't think so. And with Libby now just a plain defendant and not a witness, defense attorneys won't be able to tell jurors during closing argument that part of the reason Libby may have forgotten his dates and times about Plame is because he was preoccupied with matters of national security.

Any way you slice it -- at least any way I see it sliced -- today's news bodes ill for the defense. I have been surprised before in cases like this, and good defense attorneys often have a knack for knowing when less is more. But I just don't see it.

By Andrew Cohen |  February 13, 2007; 3:24 PM ET
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Libby may still personally believe that he wasn't forgetful, and didn't learn of Plame until late in the game - just because he's forgetful doesn't mean he admits to being forgetful. If that's true, his testimony might hurt the defense case, which is essentially that he might have heard and talked about Plame earlier but just didn't remember doing so.

Posted by: Warren Dew | February 13, 2007 04:22 PM

The early closure means the deal is sealed, a pardon for Libby before a single day in club Fed.

Policy crimes in America never result in punishment.

Posted by: Grant Smith | February 13, 2007 04:25 PM

If it all "really" came out in the wash, and everyone really had to tell the truth, then there wouldn't be anyone left in the White House. Always interesting that normal people are required to take the oath seriously and our leaders can do with it as they want, and be pardoned afterward if convicted "by mistake". I can't take the govt seriously anymore.

Posted by: David Qualey | February 13, 2007 04:29 PM

Generally the risks of putting the defendant on the stand are very high. One misstep, one inconsistency, too much fidgeting, unlikable manner -- any one of these can overwhelm the evidence.

One friend of mine went through a white collar trial. His attorney said, "I won't put you on the stand -- unless I am convinced that if I don't, you are going to jail."

So my guess is that the defense is actually quite confident that they don't need to bring in the big guns, as it were.

Posted by: Chris | February 13, 2007 04:31 PM

Since Libby is an experienced attorney, why not let him handle part of the closing argument. He tells the jury the facts in evidence are simple, he was overwhelmed with information, couldn't remember everything accurately. The jury hears from him, but the prosecutor can't ask him a question. As long as he sticks to the evidence admitted into court, offers no new information, he can argue any inference he wants in his defense.....

Posted by: gary lentz | February 13, 2007 04:32 PM

I believe that any objective observer will rightly conclude that Libby is indeed a scapegoat, and that Bush and Cheney, under instruction from Rove struck back at what they perceived to be disagreement with them by outing Joseph Wilson's wife. Audacious, unpatriotic, and CORRECT as Wilson's assertions may have been, they won't put up with anything, or anyone that doesn't bow to their will, in their power-intoxicated state.
They even attacked McCain during the primary not too long ago, even though he seems to have forgotten it. A lot of us remember many examples of this same tactic.

Posted by: tom pondysh | February 13, 2007 04:36 PM

I suspect the Scooter is heading for the slammer, where he'll have ample time to refresh his various memories. He's done. A snowflake melted under Cheny's heel. If he is as smart as some have said he is, he'll spend some time penning op-ed pieces to the media he so despises by outting the real outters.

Posted by: R M. Lord | February 13, 2007 04:36 PM

We attorneys do enjoy watching you non-lawyers make fools of yourselves. Mr. Cohen, you and your commenters keep giving us those laughs.

Posted by: James | February 13, 2007 04:43 PM

Andrew Cohen opines that today's news that Libby won't take the stand in his defense "bodes ill for the defense." That sounds like wishful thinking coming from Cohen, a man who seems to be so eager to see Libby convicted that he is willing to denigrate Libby's decision to assume his right not to take the stand--just as thousands of others choose to do in court cases in this country every year. It seems to me that the testimony of the witnesses is what "bodes ill," but for the prosecution. The case for the defense seems, from the reports I have read in the Washington Post, to be quite strong.

Posted by: Samantha Wright | February 13, 2007 05:08 PM

While the trial of Mr. Libby has proven to be interesting the main purpose would appear to be the diversion of the public from the real question. Which is who outed Mrs. Wilson and why hasn't any action been taken against the one who published her name. Both of which I believe are violation of federal law. Mr. Libby is the scapegoat and the diversion to keep the public from asking what should be the real question.

Posted by: J | February 13, 2007 05:13 PM

Why do lawyers always insist on calling themselves "attorneys"? You can almost hear poor little James squeaking, "look at me I'm important!" Pathetic.

As for Libby's lawyers not calling Libby, the previous writer is dead-on, the pardon is in the bag. Wait for an appeal after the trial, to give Bush some time-distance from all this, and a pardon days before Scooter would head to some posh white collar fed pen. Bet the pardon occurs the day after we begin to bomb Iran.

Posted by: Steve | February 13, 2007 05:13 PM

It appears that the real question left open by Mr. Fitzgerald's investigation, Why hasn't anyone been indicted for outing Valerie Plame?, will never be answered. Probably because no journalist, including Cohen, wants to ask it. Doing so would result in the immediate death of this never-ending non-story, and no self-respecting yellow journalist could allow that to happen. I submit that no one has been indicted becuase no crime was committed. That is, Plame was no longer covert, due to either the statute of limitations having run out on her covert status, or she herself had blown her own cover sometime previously; in either case, she was no longer covert. You can't be convicted of outing a person who is no longer covert. Fizgerald obviously knows this and as a result, went after the one and only indictment he could get, that of a blabber-mouth (Libby) who didn't know whether she was covert or not, and lied to cover his tracks in the event she was at some point ruled to have been covert during the period in which he was blabbing.

Posted by: captvolt | February 13, 2007 05:40 PM

...and I'm just some dumb engineer and I figured that one out a long time ago. You law-boys better hit the books.

Posted by: captvolt | February 13, 2007 05:42 PM

Libby should testify unless the lawyers believe he will be absolutely horrible on the stand.

Apparently that is what the private run-throughs are showing Libby's own lawyers.

Posted by: Hello | February 13, 2007 05:50 PM

From todays session, the president and vice-president will be impeached and Libby will be executed. NOT! You dims slay me.

Posted by: | February 13, 2007 06:10 PM

The point is, Libby lied to the FBI, and to Fitzgerald, I think, because he thought he was above the law and because he knows what liars the rest of the bunch are. While I cannot imagine a pardon for Scooter, it is obvious they all have a plan not to "go down."

Posted by: Lalalinda | February 13, 2007 06:29 PM

"Cowards to the end!"

Posted by: William Smith | February 13, 2007 06:41 PM

Whether he is convicted or not, I'm convinced that Libby is the sacrificial bug thrown overboard by the White House as a diversionary tactic to keep the real issue from being addressed: Who (or who-all; it almost seems it was done by committee!) outed Plame? That is what the special prosecutor was charged with investigating. At this point, I couldn't care less what happens to Libby; he's a non-factor.

What I don't understand is why Fitzgerald didn't call Rove and Cheney to testify. Their taking the fifth or lying their way through testimony would be far more revealing than a bunch of reporters all saying Libby is a liar.

Seems Fitzgerald is more a lap dog than the pit bull he tries to sound like. Is he that afraid of the administration's retaliatory powers? I guess an injured animal is the most dangerous; at least, that's what attorneys on both sides seem to fear.

Or maybe Fitzgerald is just getting warmed up and is saving the big show until after he swats the gnat. We can only hope.

Sam Putney

Posted by: Sam Putney | February 13, 2007 06:51 PM

Perjury is a good charge as it just exposes them all as liars. Lying, covering up, name it and this was the crew that was supposed to be honest and honorable and transparent are in reality what John Dean calls in his book, "Worse than Watergate."
Bye bye Scooter....

Posted by: Doc | February 13, 2007 06:53 PM

I thought (really wished) that Cheney's testimony would be the beginning of his road towards prison, because one way or another, he would not be able to cover up all of his lies, corruption and abuses of power.

I think someone high up got to (threatened) the defense team, or their boss, or boss's boss.

How much longer will this American disaster (Bush/Cheney) continue ?! This is a sad day for America, and freedom in general.

Posted by: Dave C, Mesa, AZ | February 13, 2007 06:54 PM

Its Chaney more than Libby should be sent to Gitmo, for crime against humanity, pergury & abuse of power. When these crooks all leave that White House , the world will be much safer. Warmongers should go!

Posted by: Paul | February 13, 2007 07:14 PM

Libby's pardon is already sitting on Bush's desk. Cheney's conveniently 'booked up' with meetings across the globe. Hundreds will die in Iraq this week. Iran is in the crosshairs. Will someone arrest these guys now? The rest of the world has connected the dots (there's so many now). Whaddya say we do it now, before more die for no reason.

And James, three lawyers walk into a bar....

Posted by: Sean, Great Falls, VA | February 13, 2007 07:58 PM

I have a question to Mr. Cohen, as well as to all that have posted: Unless you were actually in the courtroom, heard the testimony, and witnessed the demeanor of the witnesses, how can you judge the decision not to have Libby take the stand?

Posted by: Dan | February 13, 2007 08:42 PM

cheney's a coward... fitzgerald would eat him alive. cheney's soft - a doughboy... he sells a war -- sends more than 3000 to their deaths... yet grabs 7 deferrments of his own during viet namn... what a pussy. has he even done a single sit up? he's a complete wuss fat coward, deserving a swift left hook in the face.

Posted by: bob manganelli | February 13, 2007 09:13 PM

Did anyone see the report on former Senator Fred Thompson's opinion of the trial/charges and Patrick fitzgerald? Interesting coming from a former Assistant US Attorney. Come to think of it, I didn't read coverage of Senator Thompson's remarks in the Washington Post. However, it was extensively covered by most other media outlets. I wonder why? Didn't follow the "party line" is my guess.

Posted by: Fred Taylor | February 13, 2007 10:22 PM

You wrote in a WaPo analysis re: 'Scooter' Libby: "... how key White House officials were wasting their time ..."

What those 'key White House officials were wasting' was OUR time.

Not a becoming mistake on your part ... and yet another black eye on the press who was so definititvely asleep at the switch on this entire story.

I suggest you ask Robert Novak how this all works out; personally, I'm no longer interested in what that lapdog has to say.

Paul Franzmann
Walla Walla, WA 99362

Posted by: | March 6, 2007 11:06 PM

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