THE BLOG
02/20/2007 11:49 am ET Updated May 25, 2011

Libby Defense Closing, Part One

[This is not a transcript. Typos will be fixed later. Also check Marcy at Firedoglake.

Previously: The Government's Closing Arguments, Part 1]

Wells is up now. The jury is coming in.

I was sitting there listening to the prosecutor talk about my opening. Maybe I was drunk or something when I made my opening because it sounded like I made a lot of promises I can't deliver on.

Wells brings up Mr. Cooper's short testimony, "Yeah I heard that too." You will get instructions. Let me show you what is in the instruction as to count 3, the false statement charge about Matthew Cooper. It is about a few words. He criticizes Zeidenberg for using the longer conversation relevant to the obstruction count in his closing to suggest Libby is guilty of the false statement charge.

Now he moves to Cheney's note about the meat grinder and "it's not fair" to clear Rove but not Libby. It's pertinent to Libby's state of mind. Libby went to Andy Card who blew him off. He went to Scott McClellan, who said no. Libby did what I suggest only an innocent person would do. He goes to the VP and says this isn't fair. I didn't do anything. Why am I being left out there by myself? Only an innocent person would do this. The VP writes in his own handwriting it's not fair to clear Rove and not Libby. Ted Wells didn't write that, the VP did. It is real and it exists.

Now he's going to start the way he intended to start before Mr. Zeidenberg's comments.

After a month of witnesses, nothing has changed from his opening argument. Scooter Libby is an innocent man who has been wrongly charged. This is a case of he said/she-said. It's a case about different recollections of conversations between Libby and reporters.

The conversations with officials are just background. The charges relate to Libby's conversations with reporters.

Something has changed in a material way since I opened. Judge Walton last week dismissed the charges with respect to Ms. Miller's July 12 conversation. Count 1, the obstruction count, is now based solely on whethert Mr. Libby falsely testified to the grand jury about two reporters. So we are making some progress. It's now two calls with two reporters, three months later. Russert and Cooper. Miller's gone as to that date.

Those are the conversations you have to deliberate on. The facts are almost undisputed as to the background. As to Cooper, he recounts the Air Force Two trip to Norfolk. Libby takes wife and kids to Norfolk on Air Force Two. It's a day of celebration, the commemoration of the Ronald Regan ship. It's a birthday present to his ten year old.

On the trip, Libby didn't want to talk to reporters. He wanted to celebrate his son's birthday. Ms. Martin tells him reporters have been calling about Wilson's oped and we need to make a decision. Libby goes to front, talks to VP, comes back with talking points. The notes are contemporaneous, no one could ever thought they would be part of a criminal case at a future date, they speak the truth. They say nothing about Valerie Wilson. Plane lands, Libby and Martin (Jenny Mayfield also there) go into a room to make calls. Libby wanted to get home, kids had been up since 6 am. Libby didn't want to be on the phone, he wanted to get his kids home. [The reporters in the media room are laughing every time Wells mentions Scooter's kids.] He calls Matt Cooper. Cooper says Libby didn't seem interested in talking so in trying to keep him on the phone, he threw one out about Wilson's wife. And Libby said, "yeah, I heard that too."

But look at the notes. They support Mr. Libby.

Now on to Russert. He's going to have a lot to say about about Russert. He said it was impossible for him to have asked Libby a question about Wilson's wife because he didn't learn it until July 14.

Wells introduced a stipulation from FBI top investigative agent Jack Eckenrode. The FBI 302 report of the call says Russert can't completely rule out the possibility that Russert and Libby had such an exchange.

That stipulation in itself is reasonable doubt.

Novak's statement came out on the AP wire on July 11. Russert could have seen it. If you lived in the media world of Tim Russert, they could read it and talk about it.

Novak testified he wrote Mission to Niger before noon on July 11. The column was up on the AP wire shortly afterwards.

Maybe Tim Russert read or was told of the column and maybe he was mistaken where and when he learned about it. Maybe it's as simple as that. A simple piece of misrecollection.

He asked Libby if he had heard it. "All the reporters know it." That's true. They did know it because it was up on the AP wire. It was out there.

He discusses how the closings will work. He will talk for an hour, then Jeffress will talk. Then he will finish, and then Fitz goes. The Government gets to go twice because it has the burden of proof. So while Fitz is doing that last second closing, to which he won't be able to respond, " I want you to think about how I would respond based on the evidence in the record. I want you to be critical thinkers. "

Wells then reviews the presumption of evidence and reasonable doubt. Libby does not have to testify, or produce any evidence or prove his evidence. The principle is that the Government must prove he intentionally lied.

Reasonable doubt: They must be firmly convinced of Libby's doubt.

12:00

Wells goes on about reasonable doubt for some time. It's important to make the right decision. They can't take it back. There's a saying, "there are no erasers on the pencils of the jury." It's there to protect you. Please apply it. Understand the bedrock principle, Libby is presumed innocent. They have to prove his guilt. By a very high standard. Beyond a reasonable doubt.

He moves into a discussion of the five charges. Obstruction, Russert and Cooper: False Statement, Russert. False Statement: Cooper; Perjury: Russert; Perjury: Cooper.

There's no recording, there's no notes, there's nothing. There's two guys with different recollections. Think about if you were a kid, took the summer off from college, laid on the beach all summer, then went back to school. And someone asked you about a conversation in June. How would you remember? And Libby was working 10 hours a day, not laying out on the beach.

Criminal intent: you intended to do wrong. They have to prove it.

Good faith instruction: A person who makes a statement based on an honest belief it is right but it later turns out to be wrong because of mistake or faulty recollection is not guilty of a crime.

Libby is an innocent man with no motive to lie.

Back to Tim Russert now. Russert is involved in three counts, the obstruction, false statement and perjury.

[Note: Wells is a very extemporaneous speaker, not using any notes. It's hard to recap the dialogue because he switches around a lot. He asks how much time is left. He says he's going to take 15 minutes from Jeffress. Everyone laughs.]

He's speaking faster now. He shows some clips of Russert and one of Imus.

Wells still maintains Russert isn't lying, he's mistaken. He just doesn't recall. It wasn't an important conversation to him. Why would Libby make up a story about Tim Russert. Why would he use Russert as a cover?

Then he attacks Russert. First on his memory, using the Buffalo News article.

Or, maybe Libby confused Russert with Novak.

Wells is out of time, and taking more of Jeffress's time. They will break for lunch now.

Shorter version: Libby didn't lie. He didn't need to. He's an innocent man. Russert is wrong. He was concerned about being a scapegoat. Remember the meatgrinder. The proof doesn't rise to the level of reasonable doubt.

Wells is on meth now. Speeding to get his words in. His closing is not particularly focused, but he is very passionate. He brings up the meat grinder again and again, VP Cheney's note and he says Rove lied, Scooter Libby didn't lie. Rove talked to Novak. It's an incredibly important piece of evidence.

Recess.