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Openings and Closings

By Dan Froomkin
Special to washingtonpost.com
Tuesday, February 20, 2007; 11:22 AM

With closing arguments being delivered today in the Scooter Libby trial, it's worth looking back in greater detail at the opening statements in the case, presented exactly four weeks ago.

Those statements were extensively reported at the time (see my January 24 column), but I'm not sure the coverage fully did justice to either side.

So today, while I'm off at the courthouse for the closings, I'm Web-publishing extensive excerpts of the opening statements.

In his opening, special counsel Patrick J. Fitzgerald straightforwardly laid out his case, describing how witnesses would show that Libby lied to FBI agents and the grand jury. If the jury believed his witnesses -- and it would take a pretty imaginative conspiracy theory to believe they're all lying -- it's a strong case.

In the defense's opening, Theodore V. Wells Jr. makes a forceful plea to the jury to pay attention to the lack of direct evidence of Libby's guilt.

But even more than was captured in the initial coverage of the case, Wells centers the defense narrative around the notion that Libby was somehow being scapegoated in favor of White House political guru Karl Rove. (Wells mentions Rove fully 17 times in his opening, by my count.)

Wells did not make clear in the opening just how that related to the charges against Libby. And on account of the defense's strategic decision not to call either Libby or Vice President Cheney to the stand, Wells rested his case before presenting any evidence to support the claim -- or explain its relevance.

Some Brief Comments About the Closings

In opening statements, lawyers are only allowed to state what they believe the evidence will prove. In closing arguments, they are allowed to suggest inferences.

Wells, presumably, will be making a whole lot of inferences.

But I'm particularly curious about whether Fitzgerald and his team, who until now have kept their public pronouncements very strictly limited to the evidence in the case at hand, will finally expand on their theories of why Libby lied to them, and what it all means.

Specifically: Do they think Libby was lying to cover up for Cheney? And did those lies prevent them from pursuing their true target?

Murray Waas had another bombshell for the National Journal yesterday, writing that if Libby is found guilty, the prosecution may pursue Cheney legally -- presumably trying one more time to "flip" Libby and turn him into a prosecution witness.

According to Libby's own grand jury testimony, Libby and Cheney met in fall of 2003, just as the criminal probe of the CIA leak was getting underway, and discussed Libby's role.

Writes Waas: "The explanation that Libby offered Cheney that day was virtually identical to one that Libby later told the FBI and testified to before a federal grand jury: Libby said he had only passed along to reporters unsubstantiated gossip about Plame that he had heard from NBC bureau chief Tim Russert."

But, as Waas explains, Cheney had plenty of reason at the time to know Libby was lying. Among other things, Cheney was aware that he himself had told Libby about Plame a month before Libby's conversation with Russert. The two had also extensively discussed plans to discredit Plame's husband, Joseph Wilson, before then.

So why did Cheney let Libby tell that story to the FBI and the grand jury?

Waas doesn't quite come out and say this, but a reasonable conclusion might be that Libby and Cheney were conspiring to obstruct justice.

And, attributing this to "sources familiar with still-secret grand jury testimony and evidence," Waas writes: "If Libby is found guilty, investigators are likely to probe further to determine if Libby devised what they consider a cover story in an effort to shield Cheney. They want to know whether Cheney might have known about the leaks ahead of time or had even encouraged Libby to provide information to reporters about Plame's CIA status.

So will it serve Fitzgerald's purpose to offer any hints of this today in his final words to the Libby jury? We'll just have to wait and see.

I'm not advocating a "Ken Starr" approach -- where the special prosecutor's slightest suspicion gets leaked a to a friendly reporter. But at the very least, I sure hope Fitzgerald will find some ethically acceptable way to put the transcripts of what Bush and Cheney told prosecutors into the public record -- and in that way give the American people a chance to judge the veracity of its paramount leaders in this important matter.

The Prosecution: May It Please the Court

Here is the beginning and the very end of Fitzgerald's opening statement:

May it please the Court, the defense team, the government team, members of the jury. Good morning.

It's Sunday, July 6th, 2003. It's the last day of a three-day Fourth of July weekend. It's Sunday. The fireworks are over, except a different kind of fireworks are about to begin. When people wake up, they open up the Sunday paper, the Sunday New York Times.

On the page opposite the editorial page appears a column, a column written by a man named Joseph Wilson. Wilson served his career in the State Department and rose to rank of ambassador. And in this column he made an explosive charge. Mr. Wilson claimed that he had personal knowledge that would indicate to him that the Bush administration may have twisted the intelligence used to justify the war in Iraq. Mr. Wilson leveled a direct attack on White House credibility, an attack on the office of the vice president in particular. Mr. Wilson's allegations were not limited to the Sunday New York Times that day. He was interviewed for a story in the Washington Post. And he appeared on a national TV program, NBC's Meet the Press. In all three places, Mr. Wilson made the same charges about the administration twisting the intelligence to justify the war.

These claims came in the fourth month of the war in Iraq, the fourth month when weapons of mass destruction had not been found. Coming as they did, they ignited a media firestorm.

At first, the White House was stunned. A day later, the White House admitted that some of the things it said before the war about Iraq's efforts to get nuclear weapons should not have been said. But then the White House began to push back. People in the White House, and particularly people in the office of the vice president, looked at Wilson's claim and said, you know what, we don't agree. We don't think all the facts are there. We don't think all the logic is there. We think some of his accusations are unfounded and unfair. So they pushed back. And people in the White House said things to the newspapers, using their names, saying, here is why we disagree with Wilson.

But some people pushed back in a different way. They said things about Wilson to the newspapers on the understanding that the newspapers wouldn't print their names. And in the shooting back and forth between Wilson and the White House, at one point Wilson's wife got dragged into it. Some officials told some reporters that Wilson's wife worked at the CIA, and some reporters printed that in the paper.

As a result of those disclosures, a very serious criminal investigation began. First, the FBI, and then later a grand jury, had to look into whether the laws protecting classified information, and whether the laws protecting covert CIA employees had been broken by any government officials who talked to reporters about Wilson's wife working at the CIA.

The FBI and the grand jury had an important but tough job. They had to figure out a lot. They had to figure out who were these officials who knew that Wilson's wife worked at the CIA? How did they learn it? What did they learn? What did they understand about the information? And, more importantly, what did they do with it? Did they talk to reporters about it? What did they say? Why? Did they want the story to appear in the paper? That's what they had to do.

To make it simple, they had to find the truth.

This case is about how the defendant, Scooter Libby, then the chief of staff to the vice president of the United States, obstructed that search for truth. It's about how the defendant obstructed the search for truth by lying repeatedly to the FBI while it was doing its investigation. It's about how the defendant appeared before a federal grand jury in this courthouse, raised his right hand, took an oath, swore to tell the truth, and then violated that oath repeatedly by lying to the grand jury both about how he had learned that Wilson's wife worked at the CIA and what he did with that information.

The evidence in this case will show that the defendant lied repeatedly both to the FBI and the grand jury.

In short, what the evidence will show is that the defendant learned that Wilson's wife worked at the CIA directly from the vice president himself, and that the defendant discussed the fact that Wilson's wife worked at the CIA with multiple government officials in June and July 2003, and he also talked to more than one reporter on more than one occasion about Wilson's wife working at the CIA, and also gave the information to the White House press secretary, a man whose job it was to talk to the press.

When the FBI and the grand jury asked questions about what he did, the defendant lied. He made up a story. He told the FBI and the grand jury that all he told reporters was stuff he had heard from other reporters, rumors he was told that he didn't even know if they were true. In fact, you will learn that the defendant went so far as to say that he first learned -- or learned it as if it were new -- on Thursday, July 10, 2003, from Tim Russert that Wilson's wife worked at the CIA he said he was startled by this information and taken aback.

You will also learn through the course of this trial, that on Monday, July 7th, the defendant told the White House press secretary, Ari Fleischer, that he had hush-hush information that Wilson's wife worked at the CIA on the morning of Tuesday, July 8th, the defendant told New York Times reporter Judith Miller that Wilson's wife worked at the CIA.

You can't learn something startling on Thursday that you are giving out on Monday and Tuesday.

How do we get to the point where the chief of staff to the vice president of the United States is lying repeatedly to the FBI and to a grand jury? Well, that's the story of this case.

What I would like to do in the next 45 minutes or so is just give you an outline or a road map of what the evidence will show. Let me put you at ease. You will hear a fair amount of names and a fair amount of dates. It's not important that you get them exactly right as you listen to the opening. We will spend plenty enough time together in this courtroom with the witnesses before you that you will figure out the names and dates later.

So think of this as someone -- you are about to take a trip. Someone gives you a heads-up beforehand, look out for this landmark, look out for that landmark. . . .

Members of the jury, the evidence you will see in this case from the witness stand will show you that the defendant knowingly and intentionally lied to the FBI. And lied after taking an oath before the grand jury.

This is not a case about bad memory. This is not a case about forgetfulness. Having a bad memory is not a crime. The defendant is not charged with having a bad memory. The government will meet its burden to prove beyond a reasonable doubt the defendant knowingly and intentionally lied by trying to shift the information he gave to reporters away from where he really learned it and to blame it on a conversation with Russert that never happened.

Now, remember, the burden of proof is at this table. It is always at this table. We accept that responsibility. We welcome that responsibility. And we commit to you that at the end of the evidence in this case, we will stand up before you and we will be able to look you in the eye and tell you that the evidence will have convinced each and every one of you beyond any reasonable doubt that the defendant is guilty of each of the charges in the indictment: guilty of counts 2 and 3 charging him with making false statements, lying to the FBI, lying about how he learned about Wilson's wife, and lying about what he did with the information; guilty of counts 4 and 5, of lying under oath before the grand jury about the same two things, how he learned the information and what he did with it; and guilty of count 1, which is obstruction of justice, his effort to obstruct the efforts of the grand jury doing the investigation.

I ask you, as you sit here during this trial, to remember one thing. The most important thing you brought to the courtroom today is your life experience and your common sense.

When you check into whatever room you eat in and leave your coats in, leave your coats there every morning, but bring your common sense into the courtroom. You all have a lifetime of experience in sizing people up, knowing when you are being talked to straight and when you are not, knowing when someone is telling you the truth, knowing when someone makes a mistake, and knowing when someone is telling you a lie.

I submit to you if you keep an open mind during this trial, if you pay attention to the evidence, if you follow the instructions of the law that Judge Walton will give you and you apply your common sense, each and every one of you will be convinced of what happened here.

Something important needed to be investigated: whether the laws protecting covert agents and classified information have been broken. And to do that on behalf of the citizens, the FBI and the grand jury needed the truth. What the evidence will show is that the defendant obstructed that search for truth. The defendant lied to the FBI, and he stole the truth from the grand jury.

Thank you.

The Defense: I Speak for Scooter Libby

Here is the beginning of Wells's opening statement:

Judge Walton, members of the prosecution team, ladies and gentlemen of the jury: as you learned a few days ago, my name is Ted Wells, and I speak for Scooter Libby.

Scooter Libby is innocent. He is totally innocent. He did not commit perjury. He did not commit obstruction of justice. He did not give any false statements to the FBI he is an innocent man, and he has been wrongly and unjustly and unfairly accused.

There will be no witness who takes that stand during this trial who takes the oath, swears to God and says, I know Scooter Libby lied. I know Scooter Libby intentionally gave false statements. There is no such witness.

There will be no witness who will take the stand and produce a document that shows that Scooter Libby lied or intentionally made any false statements. There will be no scientific evidence that he lied or gave a false statement. No documents, no scientific evidence, no witness who says Scooter Libby told me he lied, Scooter Libby told me he was going to lie, Scooter Libby said he had lied.

This is a weak, paper-thin, circumstantial-evidence case about he said/she said. No witness, no documents, no scientific evidence.

People do not lie for the heck of it. When somebody tells an intentional lie, it is because they have done something wrong. They are trying to cover something up. And what you will learn from the evidence is Scooter Libby did not do anything wrong. He had nothing to cover up. He was an innocent person, and there was no reason to lie.

What we're going to talk about during this trial is whether he did something wrong. You will find Scooter Libby was not out pushing any reporter to write any stories about Valerie Wilson.

Now, there will be some people at the White House -- at the White House, not the office of the vice president -- who you will learn may have pushed reporters to write stories about Ms. Wilson. There may be people at the State Department, even, who pushed reporters to write stories about Ms. Wilson. But Scooter Libby did not push any reporter to write a story about Ms. Wilson. Yet the man who pushed no one is sitting here in this courtroom.

You will also learn that Scooter Libby did not have any knowledge that Ms. Wilson's job was covert or classified before July 14th, when Mr. Novak's article was published. There will be no witness who takes that stand who says he or she told Scooter Libby that Ms. Wilson had a classified job or had a covert job. He was never told that. No witness will take the stand and say that Scooter Libby knew that she was classified or covert. And as Judge Walton told you, that's not an issue in this case. And as I stand here right now, I can't tell you whether she was or whether she wasn't. Judge Walton has decided it's irrelevant, so we are not going to get into that.

And there will be newspaper articles that may suggest she was, but that's just background because the way you get at the truth is through the witness stand. And we are not going to have any testimony of any witnesses on that issue. So no one is to assume that she was classified. No one is to assume she was covert. That issue has been put off-bounds by Judge Walton. We accept his ruling.

Now, Mr. Fitzgerald suggested that Mr. Libby might have a motive to lie because Mr. McClellan, the president's press secretary, went on TVand said, anybody involved in leaking classified information, you are going to lose your job. You won't be part of this administration.

Well, you will find that Mr. Libby was not concerned about losing his job in the Bush administration. He was not concerned about not being part of the administration. He was concerned about being set up. He was concerned about being the scapegoat for this entire Valerie Wilson controversy.

And Mr. Libby, you will learn, went to the vice president of the United States and met with the vice president in private. Mr. Libby said to the vice president, I think the White House -- people over there in the White House; not the office of the vice president -- people in the White House are trying to set me up. People in the White House are trying to sacrifice me. People in the White House want me to be a scapegoat. People in the White House are trying to protect a man named Karl Rove, the president's right-hand man.

And the vice president made a note of what Mr. Libby said in private to the vice president. The note shows Mr. Libby telling the vice president, I did not leak any classified information. I was not involved with the leak to Karl Rove -- excuse me. I was not involved with the leak to Mr. Novak. I had nothing to do with the Novak leak. I did not leak any classified information. But I am concerned I am being set up. I am concerned people are trying to use me as a scapegoat.

And the vice president makes a note, and we have the note -- and I am just going to show you one sentence of the note which sums up this nightmare for Scooter Libby. Let me show you one sentence of what the vice president wrote -- and you will get to see it in the vice president's own handwriting, in his own handwriting. He kept it. Maybe it never was supposed to be seen. The vice president wrote: "Not going to protect one staffer and sacrifice the guy that was asked to stick his neck in the meat grinder because of the incompetence of others."

And you will learn from the evidence that the -- stay on that slide, please. I am sorry. The person who was to be protected - "to protect one staffer" -- that one staffer was Karl Rove.

Karl Rove was President Bush's right-hand person in terms of political strategy. Karl Rove was the person most responsible for making sure that the Republican Party stayed in office. He was viewed as a political genius. His fate was important to the Republican Party if they were going to stay in office. He had to be protected.

And the person who was to be sacrificed - "sacrifice the guy" -- that's Scooter Libby. Scooter Libby was to be sacrificed. Karl Rove was to be protected.

Protect Karl Rove. Sacrifice Scooter Libby. The person whose neck had been put into the meat grinder, you will learn, was Scooter Libby. The vice president and the president of the United States -- because the note is very interesting. The note, when you see it, has "the pres" - P-R-E-S -- and then vice president Cheney crosses that out.

And then the person whose neck was put into the meat grinder was Scooter Libby. And the meat grinder that he had been put into was to be tasked to go out and talk to certain reporters, not about Valerie Wilson, but to talk to reporters about this entire controversy concerning whether or not the president's 16 words in the State of the Union were accurate or some kind of misrepresentation.

Mr. Libby was asked by the vice president, go out and rebut the allegations made by Mr. Wilson. Nothing to do with his wife. Respond to Wilson on the merits. And Mr. Libby was asked to go out there and deal with those reporters.

That's what's meant by Mr. Libby's neck was put into the meat grinder, because Mr. Libby's job was not to deal with reporters. That was not his normal job. Mr. Libby was the national security advisor for the vice president of the United States. Mr. Libby's job involved terrorism. It involved homeland security. It involved dealing with foreign crises. That's what he did all day long. And as the government said, they don't dispute it. It's a fact.

I am not even permitted to talk about most of what he did because it is so top secret. I am going to have to later read a script to you about what his job was all about, his day job. He started at 7:00 in the morning, every morning, dealing with the most important national security issues of this country. And there is no dispute.....

So we're going to put things into perspective. Because when you just listen to the charges, you would think that Ms. Wilson was some big deal. She became a big deal when the criminal investigation started. But in real time, in June and July, in terms of Scooter Libby, Ms. Wilson -- where she worked was no big deal to him. So we're going to put things in context because when you just talk about Ms. Wilson in this case that involves statements involving Ms. Wilson, you tend to think in real time she was a big deal. She wasn't to Scooter Libby.

I can't speak for anybody else. But I speak for Scooter Libby and she was not a big deal to him.

And when the note by the vice president refers to the incompetence of others, you will learn that refers to the fact that this whole controversy over the 16 words had been caused in great part by the incompetence of people at the CIA who let the words get into the speech in the first place.

And so Mr. Libby, because of the incompetence of the CIA, had to go into the meat grinder. And so in late September, early October, he was put in the spot where he is sitting in private with the vice president saying, they are trying to set me up. They want me to be the sacrificial lamb. I didn't do anything. I am not going to stand for it.

And you will learn that the vice president, because Mr. Libby said to him, I am innocent and I demand I will not be sacrificed so Karl Rove can be protected -- the vice president takes steps and forces the White House to go out and say to the press the same thing that had been said about Karl Rove.

But unlike Karl Rove, you will learn Mr. Libby had not been out pushing stories about Ms. Wilson. You see, the innocent person was to be sacrificed; somebody who had done something, he was to be protected. But, again, Mr. Libby was just a staffer. He was just a guy working on national security. He was an important staffer, but Karl Rove was the lifeblood of the Republican party. . . .

Mr. Libby was interviewed by the FBI on October the 14th. And you will learn he did his best to recollect what had taken place. He did his best. He told it as he recalled it then. But I want you to understand, when the interview takes place, it's October, and they are asking him about some telephone calls that took place in July, three months earlier.

This case is about three telephone calls. That's what he had been charged with, three telephone calls: one call to Matt Cooper, one call with Tim Russert, and one call with Judy Miller. Three telephone calls.

So three months later he is being asked, what do you recall, with specificity, with details, about what was said on a telephone call, about a snippet of a conversation that may have involved the wife that may have taken 20, 30 seconds at most.

Who can remember -- forget that he is a busy person. Forget he is dealing with national security issues. If you were young and vibrant, right out of college -- you get out of school in June, you enjoy the summer, and you go back to school in September. Mid-September, somebody says, tell me about a telephone conversation you had in June. You would look at somebody like they had two heads. I mean, three calls, a few seconds, three months later: what do you recollect?

Mr. Libby has no notes of the calls. Mr. Russert has no notes of the calls. Mr. Cooper has some notes of the calls, but he has testified already and will testify in this case that his notes do not reflect anything about any conversation concerning the wife. So for all practical purposes, he has no notes. Russert has no notes. Cooper has no notes concerning the wife. And Ms. Miller has testified repeatedly she has got a fuzzy, speculative memory, and her notes are cryptic. The only notes she has are, like, two words.

So that's what the case is about. It's not about the war. It's not about whether the Bush administration lied to the American public about the war. It takes place in that context, and that's why we have all these people here because they are interested in the war.

But I am here to defend Scooter Libby for three telephone calls. And as interesting as it is to be in a case with the backdrop of the war and to have all these people here, ultimately, what you all are going to have to focus on and decide is a very narrow question having nothing to do with the war, but about three phone calls, three reporters, what somebody recollected three months later, and what some other people recollected three months later where there are no notes, no recordings. He said, she said. . . .

I am going to talk for a minute about your role and your function. I am going to talk a little bit about Scooter Libby and who he is. Then I am going to talk about the charges. I am going to talk about each count, and I am going to show you what the words are, because this is a case about memory, it's about recollection, and it's about words.

And you will find, for example, with respect to Mr. Cooper, the debate between Mr. Cooper and Mr. Libby is over about four words. Mr. Cooper says Libby said, I heard that, too. Mr. Cooper says, I have heard Valerie Plame was involved in sending her husband on a trip. Have you heard that? Mr. Libby - - Mr. Cooper says Libby says, I heard that, too. Mr. Libby says, I heard that from reporters, but I don't know if it's true.

So we are talking about a few words, which you will find, as I said, if you look at Mr. Cooper's notebook, there is no reference -- no reference to any discussion about the wife, which is totally consistent with the concept of what Mr. Libby was saying.

Forget the particular words. The concept that Mr. Libby said he communicated to everybody was, I am not confirming anything. I am not confirming anything. I don't know if it's true. And one way to know if a person who is talking to a reporter has not confirmed something is to look at the notes because the confirmation is something that is important to reporters. And if somebody has not has said something that's not confirmation, it's probably not in the notes.

If somebody has said something that's confirmation, it will be in the notes. And the fact that Mr. Cooper says he can't find anything in the notes about the wife is powerful evidence that, in terms of a concept -- forget the particular words. What Mr. Libby remembers he communicated in concept is exactly correct, that he did not confirm anything.

Now, in a lot of respects, we already have accomplished the most important part of this case. We chose you. We took days to choose you. Most juries are selected in a couple hours. We took days to select you. And we made a decision that you and you alone will be the ultimate judges of Scooter" Libby. Not these prosecutors. They are not judges. If the system thought the prosecutors were always right, we would not need juries.

But under our system of justice, we bring people in from the community who sit as impartial judges of the facts to make a decision. And it is an enormous power that you have to sit in judgment of another human being. But with that enormous power also comes enormous responsibility. It's a responsibility to do the very best that you can to return a fair and a just verdict, a verdict based on the evidence.

That's why we took so long. That's why we asked you these questions about how you feel about the war because just as it was wrong what the White House was trying to do to Scooter Libby in terms of sacrificing him to protect Rove, it would be wrong for any of you to let your feelings about the war interfere with Scooter Libby getting a fair trial.

Scooter Libby cannot be sacrificed for how somebody feels about the war. That would be wrong. And each of you took an oath. You swore, regardless of your feelings about the war, to put it to the side. And you have got to fight to keep it to the side in terms of how you process information, in terms of how you filter information. You have got to fight to be fair.

Fight to forget all these people in the audience. Three phone calls. Three reporters. Three months. That's what the case is about. Nothing to do about the war in terms of the charges themselves. . . .

Cartoon Watch

Jeff Danziger on Bush of the Kush; Stuart Carlson on Iran; Mike Luckovich on Bush's credibility; and Jim Morin on Cheney and Libby.

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