The Libby Case Crests for Prosecutors

It stands to reason that the prosecution's case almost always looks best just before the first defense witness takes the stand. In the Lewis "Scooter" Libby perjury and obstruction of justice case, for example, the only genuine narrative jurors have heard so far has been exclusively shaped by special prosecutor Patrick Fitzgerald. His few but powerful witnesses all have helped portray Libby, to varying degrees, as a guy who was so hands-on and involved in L'Affaire Plame-Wilson that it is hard to imagine, beyond a reasonable doubt or otherwise, that he genuinely forgot what the truth was when questioned under oath.

So a long weekend now awaits Team Libby. Not only have they had to endure a tight case-in-chief, they now have to figure out what to do with two testimonial pillars of their cause. For months we'd heard that Libby himself would testify that he honestly couldn't remember what was what when the feds came asking about L'Affaire Plame-Wilson. Now, we hear, they are exploring the possibility that Libby will not testify at all. Also, for months, the chattering class practically drooled at the prospect of seeing Vice President Dick Cheney take the stand, of his own volition, to help out his friend and former colleague. Now, we hear, maybe that's not going to happen after all. When these sorts of shifts occur in a defense case, during the trial, it usually means one of two things. Either the prosecution has preempted certain key arguments or the government's case has been so weak certain defense witnesses are not needed. You can forget about Option A in this case.

So where does leave the defense? It is hard to imagine Libby's lawyers bringing to the stand enough witnesses who would or could dismantle the underpinnings of the case offered by Team Fitzgerald's unaffiliated bureaucrats and reporters. We can expect another round of journalists who will try to accomplish this task but I don't see Libby winning if this case devolves into a reporter-vs.-reporter truthfest.

The "faulty memory" defense? Sure, it is still available. But how in the world is the defense going to sell it to jurors if Libby himself won't take the stand and explain it? In a case like this, where so much of the defense case seems to rest upon the perceived importance of the defendant back in 2003, won't it seem to jurors to be arrogant of Libby not to testify before them? I know he has a constitutional right not to. But just because he has that right doesn't necessarily mean he ought to exercise it. On the other hand, maybe it is Libby's perceived arrogance that is causing his lawyers to be circumspect about putting him on the witness stand to begin with. Or maybe his lawyers are just messing with us in an attempt to gin up some drama in advance of Libby's appearance on the stand-- you just never know with lawyers.

I will say this much: The prosecution held serve. It is a strong case strongly presented. And now we'll know if those big bucks Team Libby has been paid will pay off.

By Andrew Cohen |  February 9, 2007; 8:45 AM ET
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The context would suggest that you meant "You can forget about option B."

Posted by: Mike | February 9, 2007 02:41 PM

I thought it had already been established that Armitage? was the original source of the leak to the press? Simply subpeona him to the stand--when he invokes the fifth-then the jury will know it was him.
Libby was only indicted when fitzgerald was on a fishing expedition. Now that it is known for sure who did the original leak. It is politically inspired and vindictive prosecution of Libby to fault him for not remembering where he heard the facts of the leak and from who.

Posted by: Fitzgoof | February 9, 2007 03:11 PM

First, thanks to Mike for an important clarification as it read a bit funny to me as well.

Now, to Fitzgoof, who seems to be Cheney in disguise:

Armitage isn't on trial here. The point is the overwhelming arrogance of Libby and the rest of the illegitimate occupants of this White House who think they are above the law, can lie at will, and felt that it was necessary to destroy carrers and whatever else in the reckless pursuit of a War of Choice.

If you submit that Fitzgerald's investigation was politically motivated (pretty hard for a registered Republican...), what does that make the Ken Starr? Nevermind.

Posted by: Thin Man | February 9, 2007 03:45 PM

Ok, know-it-alls, if this is true: "the prosecution has preempted certain key arguments," tell us which ones.

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