Libby trial / COM 317, 209, 150 assignment

Testimony began this week in a trial that has major implications for the news media in U.S. District Court at Washington, D.C. Here's a good backgrounder that ran when the trial opened last week with jury selection. It's an Associated Press story, and it ran in Editor & Publisher, the trade magazine for the newspaper industry.

Your assignment, in all three classes, is to follow this trial.

Defendant is Lewis "Scooter" Libby, a senior aide to Vice President Cheney who is accused of lying to authorities during the investigation of a White House news leak that "outed" or made public the name of CIA agent Valerie Plame in 2003. Complicated? I'll try to explain some of the legal issues below. For now let's just say it's very political, and it shows how news is gathered at the highest levels of government. It also shows, and I'm trying to be neutral here in the way I word this, how the Iraq war was sold to the American people in 2003.

But the immediate issues are narrow, and kind of complicated. Here's how the AP summarized the case:

Libby is accused of lying to investigators about his conversations with reporters regarding outed CIA officer Valerie Plame. Plame's identity was leaked to reporters in 2003 after her husband criticized the Bush administration's prewar intelligence on Iraq.

The leak touched off a political firestorm and an FBI investigation that Libby is accused of obstructing. Several well-known journalists -- including Bob Wooward [of The Washington Post], Tim Russert [of NBC News] and Judith Miller [formerly of The New York Times] -- are expected to testify.

Trial is expected to last four to six weeks.

Summary of case

In our mass media law course (Communications 317), we are learning to analyze court cases by following a simplified version of the outline used by law students when they "brief," or summarize, a Supreme Court case. The Libby trial isn't an appellate case, but I'm going to use the law school outline we're learning in COMM 317 because I think it'll help you cut through some of the confusion in the trial:

The facts. For the most part, a trial is about the facts of a case. What happened? Who did what? Who saw what? Who heard what? Lawyers for both sides put witnesses on the stand to testify to the facts they know. In this case, the prosecutor will put on witnesses who say Libby lied to FBI investigators about his role in leaking Valerie Plame's name to the media. It's against the law to lie to the cops (it's called obstruction of justice and, sometimes, perjury). As I understand it, Libby's defense is he had so much on his mind, he made an honest mistake when he was talking to the investigators.

There will be a lot of other testimony, too, much of it about the political situation at the time. Plame's husband, named Joe Wilson, had just written an op ed piece for The New York Times citing evidence that President Bush used information that was known to be false in speeches just before the invasion of Iraq in 2003. There is apparently some evidence the White House blew Plame's cover as a CIA agent to punish her husband for criticizing Bush. I don't know how strong it is. But I think we'll hear more about it as the trial goes on. I think we'll also hear people deny the White House had any such intention. Look for it, in fact, in today's coverage quoted below.

One last thing I need to say about the facts. Typically the prosecutor in a case like this tries to stick very narrowly to what happened: Who did it? Was it against the law? Period. The defense typically tries to confuse the issue, to bring in everything but the kitchen sink. So far, this trial is following that pattern.

The law. At the trial court level, you don't hear as much about the law as you do about the facts. Libby is accused of lying to the FBI, which is illegal. There's another law involved here, too, one that makes it illegal to publicize the name of a CIA agent. Libby is not accused of that, as I understand it. He's accused of lying to the FBI and later to a grand jury when they were trying to find out who leaked her name to the news media.

Again, look for the defense lawyers to lay down a smokescreen and cite all kinds of laws in the course of a trial to confuse the issue. It doesn't mean their clients are necessarily guilty when they do that. It's just what defense lawyers do.

The issue. To lawyers, an "issue" is a question that's to be decided. In this case, it's simple: Did Libby lie to the investigators, or did he just forget? There's another sense of the word "issue," too, and we need to distinguish between the two kinds of issues. Usually when we say "issue," we mean a subject of public debate. Health care is an issue. So is environmental policy. Global warming. Drilling for oil on Alaska's North Slope. The war in Iraq. We'll probably hear about those kinds of political issues, too. But the only legal issue before the court in the Libby trial is whether he unlawfully lied to the FBI and the grand jury. See the difference?

Legal reasoning. We don't hear very much about this at all at the trial level, except when the lawyers argue motions. These are requests for the judge to do something, to allow someone to testify or say they can't, to "strike something from the record" if it's something the jury shouldn't hear, whatever. It becomes very important on appeal, because it's the judge's decisions usually that get appealed.

Some good links

I think your best one-stop shopping place is the Microsoft Corp. ezine Slate.com at -- where else? --- www.slate.com. They have daily coverage of the trial, linked to a directory that collects their Scooter Libby stories going back to 2005, when they published a profile of Libby that is probably the best starting place to read up on the guy, what he's charged with (allegedly) doing and the issues in the trial.

Also in Slate every day is a digest of the top national stories in The New York Times, The Washington Post and The Los Angeles Times. This feature is called "Today's Papers," and it runs every day toward the right of the page. Get in the habit of reading it, too. Even after the trial's over. Especially if you're in COM 209 or a communications major. Here's today's summary (minus links) of the Libby trial:

The LAT, NYT, and WP all front the trial of I. Lewis "Scooter" Libby, and they all focus on how the defense tried to portray him as a "scapegoat." Libby's lawyers contend the White House wanted to blame Libby in order to save Karl Rove, who was viewed as essential for the Republicans. Although everyone agrees this will likely be an important point in the trial, the NYT notes up high that the defense did not make clear what kind of connection exists between these allegations and the charges Libby faces of making false statements to the FBI and perjuring himself before a grand jury. Slate's John Dickerson notes that the trial "has opened a window into an administration that in 2003 was deeply at war with itself."

This is something you should read daily, anyway, especially if you're taking COM 209 (introduction to newswriting).

Today's Washington Post

Today's story in The Washington Post, which was also picked up by the Trib in Chicago, shows how some of what I was saying above worked in today's papers.

Here are the charges, and prosecutor Patrick Fitzgerald's statement about them. See how he's trying to stick to the straight and narrow?

Libby, 56, is accused of five felony charges stemming from a federal investigation into the leak of Plame's identity to the media. Libby is not charged with the leak itself, nor is anyone else. He faces two counts of making false statements to FBI agents, two counts of perjuring himself before a grand jury and one count of obstructing the investigation, and he has pleaded not guilty to all charges.

"How could we reach a point where the chief of staff for the vice president was repeatedly lying to federal investigators?" Fitzgerald asked jurors rhetorically. "That's what this case is all about."

Fitzgerald, by the way, is from Chicago.

And here's the gist of the case argued by defense attorney Theodore Wells. See how much else he brought in?

Wells asserted that the vice president's former right-hand man gave investigators his "good-faith recollection" and that any mistakes in his memory were innocent. He also contended that the journalists and administration officials who are to testify during the trial also have imperfect memories. He said that Libby did not aggressively push the Wilson story, did not know that Plame worked in a covert role and had no motive to lie to investigators.

According to Wells, when the federal investigation of the leak began in the fall of 2003, Libby was not worried about his job, but was "concerned about . . . being scapegoated." Scott McClellan, the White House press secretary at the time, said publicly that Rove was not responsible for any leaks, Wells said, but did not say the same about Libby.

Libby, Wells said, told Cheney he feared "people in the White House are trying to set me up." Wells then showed the jury the text of a note Cheney had jotted that said: "Not going to protect one staffer + sacrifice the guy that was asked to stick his neck in the meat grinder because of the incompetence of others."

Wells said: "That one person was Karl Rove. He was viewed as a political genius. . . . He had to be protected. The person who was to be sacrificed was Scooter Libby." According to Wells, the vice president tried to persuade White House colleagues to publicly clear Libby's name as the source of the leak.

I think the point here is to show the jury how many other things were on Libby's mind, to bolster his "oops-I-forgot" defense. It will also, no doubt, provide the most interesting parts of the news converage.