It was never really about the law, this political trial of a former political operative undertaken in the world capital of politics. I. Lewis “Scooter” Libby, former high-ranking White House aide, was sunk from the moment he was indicted. Sunk because he was caught in a lie, sunk because all the king’s horses and all the king’s men couldn’t convince even a single juror that important men like Libby ought to be excused from their misdeeds just because they are the best and the brightest of a generation.
So now Libby is a convicted felon, likely on his way to a minimum-security federal prison somewhere – heck, maybe he and Enron’s Jeffrey Skilling can work out together when they are let out of their cells.
Team Libby managed to create some legitimate appeals issues that they certainly will pursue on his behalf. And The Great Decider himself, President George W. Bush, always can decide to pardon his former subordinate on or before Jan. 20, 2009. But for now, a fellow accustomed to power and prestige essentially will become powerless, beholden even more than before to lawyers and judges and sentencing officers.
It is not a complex case to analyze. Libby was convicted because one solid prosecution witness after another – journalists and politicians and bureaucrats all – came forward and told a jury of eight women and four men that the defendant’s story about Valerie Plame didn’t match their own. He was convicted because too many of these witnesses themselves had no reason to lie. He was convicted because special prosecutor Patrick Fitzgerald underplayed his case and his cause in court and didn’t turn this trial into even more of a political circus than it already had become.
Libby lost his battle because his defense was an implausible one. Honestly, why would any reasonable person believe that a brilliant guy like Libby would forget his own role in the disclosure of Plame’s identity as a covert CIA agent? Isn’t it more likely that he would have dissembled before the grand jury and federal investigators because he was worried that he might get in trouble for leaking Plame’s identity to the public, itself a federal crime? That’s clearly what jurors concluded by reaching this verdict after 10 days of deliberations.
Libby lost because his lawyers told him not to testify, or he told them that he wouldn’t. This prevented jurors from gaining more of an empathetic or sympathetic tie to a defendant who, after all, wasn’t in the dock for murdering anyone. Might this case have turned out different if Libby had testified in his own behalf and sold his “faulty memory” defense? Perhaps. But it ought to tell you something about his state of mind, and his attorneys’ confidence in their case, that he did not. Prosecutors won this case by adopting a “less is more” strategy. The defense team lost the case by doing the same. “My client is a fall guy” never works as a defense.
Sure, you can argue that Libby’s lawyers chose not to bring their client to the stand in order to help their chances on appeal. I don’t buy that. I think Libby stayed away from testifying because he and his team were scared of the cross-examination. And I think Vice President Dick Cheney did likewise. He was supposed to ride into this trial like the Lone Ranger and save the skin of his friend and former colleague. Never happened. Either Team Cheney didn’t want a piece of the trial or Team Libby didn’t want a piece of Cheney.
Doesn’t matter now, right? All that matters now for Libby is that his lawyers promised jurors a defense and then didn’t deliver.
Fitzgerald has been pilloried by the left for not indicting more White House officials who were caught up in this scandal. He has been blasted by the right for picking on Libby. But he’s no Kenneth Starr, and the genius of his strategy and tactics likely will stand the test of time. We may not know every single detail of how it came to pass that key administration officials conspired to try to destroy the reputation of a bureaucrat, Joseph Wilson, who became an opponent of the government’s Iraq war plans. But we now know most of those details. A story that was never supposed to see the light of day was shown to the world in open court and under oath. To me, that’s the mark of a successful trial in our courts.
Denver attorney Andrew Cohen is a CBS News legal analyst and a contributor to The Denver Post.
