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Christy Hardin Smith Headshot

Libby Trial: Oncoming Train

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As a lawyer, your most valuable commodity in terms of courtroom and professional currency is your reputation for honesty, integrity and sticking to the agreed upon rules and the law, whatever the stakes of your case at bar.  This morning, that question came running headlong like an oncoming train into the legal team representing Scooter Libby.

To set the scene, prior to the testimony of Craig Schmall, the CIA briefer for Dick Cheney and Scooter Libby, there had been a series of hearings and motions filed by the government, led by Patrick Fitzgerald, and Libby's legal team, primarily led in these matters by John Cline and Ted Wells, over the last few months preceding the trial.  Judge Walton heard arguments on these matters under the CIPA rules and regulations, and then issued orders and memoranda laying out the procedures by which any of this information -- relating to highly classified national security documents and intelligence -- could be admitted, if at all, in the course of these legal proceedings.

In order to introduce the "memory defense" that Libby's legal team wants to use to defend Libby -- the "my difficult job made me lie and forget" defense -- Mr. Libby himself will have to take the stand because it is ultimately his memories which are at issue in terms of his state of mind and his alleged flashoods to the FBI and the grand jury.  During Mr. Schmall's testimony, the Libby defense team is trying to slip that memory defense and the national security information which has already been ruled, in part, to be very limitedly admissible, if at all, into the minds of the jury through a back door and a completely unrelated witness.

In effect, as prosecutor Patrick Fitzgerald argued this morning, to "bootstrap" the evidence and the arguments into the case.

I can certainly understand wanting to defend your client with every legal weapon in your arsenal.  I can also understand feeling constrained in terms of your defense because national security considerations require you to be circumspect in how you can or cannot introduce certain evidence into the trial proceedings.  But the CIPA hearings in this matter occurred over a series of weeks, months even, and the Libby legal team has had quite some time ot work out their witness questions and other strategies to overcome this obstacle.

In fact, Judge Walton has bent over backward in a number of his rulings, pressing the government repeatedly for more expansive summary information to be provided as evidence for the jury's consideration -- so much so that Fitzgerald and his team, and attorneys from the CIA had to start from scratch and re-draft and re-redact documents in order to fulfill the judge's orders.

To pull this sort of stunt during trial is a slap at the authority of the court and its very detailed, very specific orders -- and the judge's very careful and thorough consideration of the defendant's rights to this very closely guarded, very difficult to obtain information regarding some highly classified national security matters.  Judge Walton was clearly not happy, but was still leaning toward a ruling that left the information somewhat on the table for Team Libby until Wells could not stop himself from "gilding the lily" -- Wells started arguing that CIA witnesses "should not be believed" because of their biases toward the Vice President's office, and tat he should be able to argue that to the jury based on Schmall's briefing notes.  Judge Walton informed Libby's legal team that he would not permit an argument on a memory defense at closing absent testimony from Libby, because otherwise the memory defense was not relevant to the proceeedings...and that ended the argument, and the judge agreed to issue a terse cautionary instruction on the CIPA information and questions that Mr. Clne had asked, and we went on to the next legal argument.

Which was a mistake for Libby's legal team.

Ted Wells, lead trial counsel for Libby, completely overstepped in making an argument regarding some handwritten notes of the government's witness, Cathie Martin.  Libby's trial team had been given copies of these notes a year or more ago, but just got around to asking to see the originals of the notes this past Saturday.  Wells was arguing that the copies given by the government were illegible (Fitzgerald countered that they were not and that, were there problems reading any pages, Wells' team had had a year to notify the government and request a better copy, and had failed to do so until last Saturday).  Wells then argued that they had not had enough time to read the notes, due to the number of documents which needed review -- Wells made a big deal about the sheer volume of documents.

Huge error.

As it turned out, the sum total of all of Cathie Martin's handwritten notes in their original form totaled less than an inch of paper, most of which were not relevant to the proceedings at all.  Those documents which corresponded with the government's intended exhibit proffer were a grand total of six pages.  In making an argument which was built on a foundation of very hot air, Wells lost credibility with the judge, with the government, and worse for his client, with those in the media and public gallery. 

In a town where reputation and power is everything, Libby's entire legal team was diminished in a matter of minutes with this one, petty, groundless and unnecessary stunt.

All of these arguments were done outside the view and hearing of the jury, which was sequestered in the jury room at the time the motions took place.  So there is no question that this misstep has prejudiced the jury in any way, since they will not hear of it from any of the members of the court.  But, in all honesty, irritating a Federal judge this early in a high profile trial by stating something completely unfounded and conflating a tiny misstep (that likely was a result of some lack of preparation issue on the part of some segment of Libby's trial team) is a huge error.

And the entire episode led to Judge Walton saying this on the record in open court about Patrick Fitzgerald:  you are "one of the most scrupulous prosecutors I have ever had appear before me," in response to the judge having to deal with the, by comparison, unnecessary conduct that Wells pulled over Cathie Martin's notes.

Watching this occur from the gallery was painful, even for someone like myself who is hoping for a government win in this trial -- because you could see the train coming for miles as this got going, and Wells built his trial persona up and up into a conflated opinion argument before the judge, only to have reality crash in on top.  I sat watching, feeling this need to scream out, "Stop, you are going too far."  but you just do not do so from the gallery of a federal courtroom while the judge is in session.  And so all any of us in the audience could do was watch.

This sort of hubris, after sitting through the opening hour and a half of testimony from Cathie Martin, Vice President Cheney's former public relations assistant, is exactly what started this entire mess in the first place.  And so much of the facts on this will continue to spill out in the days ahead.  Before I left the courthouse today to catch my flight home, I heard that Ari Fleischer was also in the building.  With Cathie Martin still on the stand, and Ari Fleischer standing in the wings, this trial promises to keep heating up in the days and weeks ahead.