Fitzgerald Rests Strong Prosecution

David Corn
Thu Feb 8, 4:13 PM ET

The Nation

It was Hail Mary time for Ted Wells, an attorney for I. Lewis "Scooter" Libby, as the prosecution moved toward resting its case in the perjury trial of Vice President Dick Cheney's former chief of staff.

On Thursday, Meet the Press anchor Tim Russert was back on the stand to be cross-examined by Wells. The previous day, Russert had kicked Libby's cover story in the groin. He had disputed Libby's claim that in the days before the leak that outed Valerie Wilson as a CIA officer he (Libby) had learned about her CIA connection not from official sources but from Russert. No way, the newsman said. The Russert call is critical for Libby, who has maintained he never shared official (that is, classified) information about Valerie Wilson with other reporters and only passed along gossip he had picked up from Russert. But on the stand Russert stuck to his version: he didn't say anything to Libby about Wilson's wife during a phone call on July 10 or 11, 2003, because he knew nothing about Wilson's wife until the leak appeared in a July 14 Robert Novak column.

So what was Wells to do?

He started off Wednesday by taking shots at Russert's memory. He made little progress. On Thursday, he tried to undermine Russert's credibility on other fronts. Wells attempted to make an issue of the fact that until Russert appeared as a witness in this trial he had never divulged publicly that he had talked to the FBI about the CIA leak investigation in November 2003. Wasn't Russert's call with the FBI a "newsworthy event?" Wells inquired, hinting that Russert had for years hid part of his involvement in the CIA leak case.

Russert explained that he had not reported the conversation because the FBI agent had asked him to keep it confidential.

Wells then tossed far-fetched theories at the jury.

On the stand, Russert had said that none of his NBC colleagues had told him anything about Wilson's wife. What about David Gregory and Andrea Mitchell? Wells asked. None meant none, Russert noted. But Wells still was holding out the possibility that Gregory received leaked information on Wilson's wife from then-White House press secretary Ari Fleischer and then quickly relayed it to Russert, who shared it with Libby.

It's a thin theory--especially because neither Russert nor Gregory reported any news about Wilson's wife at the time. And the timing of real-world events may undermine the theory. But Wells keeps hammering at this possibility.

To buttress this part of his case, Wells tried to play for the jurors a video clip of Andrea Mitchell saying on CNBC in early October 2003 that she had known about Valerie Wilson's CIA employment prior to the Novak leak. But Mitchell, in two later interviews on Don Imus's radio show (which also aired on MSNBC), said she had misspoken and she retracted the comment.

Wells suggested that Russert and Mitchell had conspired to undo Mitchell's remark so Russert's statements related to the leak case would not be undermined. He asked permission to show all these tapes to the jury. "This is nitpicky at best," Judge Reggie Walton complained. He ruled the tapes could not be played.

Next Wells took another shot at Russert's credibility. He pointed out that during Russert's appearance the previous day he had testified that Libby used the words "hell" and "damn" when he had called Russert in July 2003 to complain about Hardball host Chris Matthews' on-air criticisms of Cheney and Libby. Yet, Wells said, when Russert gave a deposition to special counsel Patrick Fitzgerald in August 2004 about this conversation with Libby he had not referred to these curse words--as if Russert had somehow suspiciously changed his account.

Russert explained that during his deposition he had said that Libby had been "venting" and that word covered the cursing.

Such small stuff did not seem to impress the jurors; many appeared to be unriveted by Wells' questioning of Russert. Finally, Wells played his last card. Was there, he dramatically asked the witness, "bad blood" between Russert (and all of NBC News) and Libby? "No, sir," Russert replied in the quiet tone he had used throughout his testimony. But Wells had evidence to suggest otherwise.

It was another Imus clip. On the morning of October 28, 2005, hours before Fitzgerald was to announce indictments in the CIA leak case, Russert was on the show (via telephone) telling Imus about the mood of anticipation within the Washington press corps and his own NBC News bureau: "It was like Christmas Eve last night. Santa Claus is coming tomorrow. Surprises. What's under the tree?"

Citing this comment, Wells contended that Russert was "elated" that Libby was about to be indicted. No, Russert said, he was referring to the fact that a "big news day" was coming and that no one knew for sure what Fitzgerald would announce. Was Russert equating an indictment of Libby with Christmas "presents under the tree?" Wells asked. No, the television host said. "You looked very happy" in the Imus clip, Wells countered. That was a "still picture," Russert noted.

The cross examination was over

One more swing and a miss for Wells. In the first three weeks of the case, Wells and co-counsel Bill Jeffrey have suggested there have been a Variety Pak of plots against their client: a CIA conspiracy against Libby, a State Department conspiracy against Libby, a White House conspiracy against Libby, and, now, an NBC News conspiracy against Libby. But they have introduced no evidence to back up any of this.

Wells' attempt to transform Russert's Christmas comment into proof that Russert and NBC News were bent on ruining Libby was typical. It was silly. But Wells is merely acting as a defense attorney should. Pull on any thread you can. Raise any matter that might sow confusion or doubt among the jurors. Nevertheless, he failed to undercut Russert, Fitzgerald's final witness.

The prosecution ended strongly. Fitzgerald has presented a parade of witnesses who have contradicted Libby on the key points: what he had known about Valerie Wilson and what he had told journalists. The defense is expected to call its first witnesses on Monday. The lineup will probably include several reporters who spoke to Libby before the CIA leak happened and who will testify that he said nothing to them about Valerie Wilson's wife. But Wells might need more than that--and more than word games and hints of plots--to beat back Fitzgerald.


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