02/21/2007 12:26 am ET | Updated May 25, 2011

Libby Trial: Missing the Forest for the Trees

I'm so conflicted.

I believe that the Office of the Vice President, particularly Dick Cheney and Scooter Libby, went all out to attack Joseph Wilson after his July 6th New York Times Op-ed criticizing the intelligence relied on by the Administration to justify its decision to go to war in Iraq.

I believe the evidence at Scooter Libby's trial established that Cheney was livid over Wilson and that he used the C.I.A., the State Department and the Department of Defense to search for dirt on him. Through his inquiries, Cheney learned that Wilson's wife, Valerie Plame Wilson, worked for the CIA in the counter-proliferation division on weapons of mass destruction. He received information that she might have had a role in sending Wilson to Niger to check on intelligence claims that Iraq was acquiring uranium for use in WMD's.

I believe the evidence established that Cheney decided to fight back against Wilson. He got Bush to declassify the NIE and then told Libby to leak it to reporters. Libby chose Judith Miller. Cheney dictated talking points to Libby. Cheney press aide Cathie Martin sent out her own version of Cheney's talking points. The talking points may not have included a reference to Valerie Wilson, but the message was clear: Destroy Joe Wilson's credibility.

Cheney gave Libby the nepotism card to play with reporters. Cheney and Libby probably never considered Valerie Wilson might be covert or that her employment status was classified and therefore it might be a crime to leak it to the media. Or, they knew and were too arrogant to care.

Only Libby didn't just reach out to the media. He also reached out to Ari Fleischer, who at the time was finishing his tour of duty as White House Press Secretary. According to Fleischer's testimony, Libby told him about Valerie Wilson over a farewell lunch and said it was "hush hush" and "on the Q.T."

The White House also was involved in the leak campaign. Karl Rove was a confirming source for Robert Novak's column about Valerie Plame, as well as a source for Matthew Cooper.

I have no doubt Bush Administration officials opted to destroy Joseph Wilson's credibility any way they could -- including by insinuating he was sent to Niger because his C.I.A.-employed wife suggested him for the trip.

So, why am I conflicted about whether Libby will be convicted? Because Libby isn't charged with conspiring with Cheney or White House officials to leak classified information or ruin Joseph and Valerie Wilson. He's charged with lying about discrete conversations with Matthew Cooper and Tim Russert, and thereby obstructing justice and impeding the grand jury investigation.

Memory is fragile and affected by many things, including but not limited to the passage of time. Libby was questioned in October, 2003 and March, 2004 about conversations he had in June and July, 2003. Every witness in this case had issues with memory. Ari Fleischer thinks he was not a source for Walter Pincus, while Pincus is sure he was. Fleischer testified he told reporter John Dickerson about Joseph Wilson's wife. He was so sure he had done so that he said it was a reason he sought immunity from prosecution. Yet, Dickerson is equally sure Fleischer didn't tell him.

Judith Miller forgot about her June 23 meeting with Libby until she found notes about it in a shopping bag filled with notebooks under her desk. She acknowledged hearing about Valerie Wilson from other sources, but couldn't or wouldn't identify a single one.

Matthew Cooper's notes and his first e-mailed report to his editors at Time don't match his trial recollection of his conversation with Libby. It seems more likely that Libby told Cooper not "I heard that too" but "heard something about the Wilson thing and not sure if it's even true."

Libby was grilled for 8 hours before the grand jury, at a time when the FBI had all of his notes but one, one which he didn't try to hide, but shared with investigators. He testified entirely from his memory of conversations he had months earlier.

Libby may have been hell-bent on following through on orders from Cheney to destroy Joseph Wilson's credibility. But, he's not charged with that. He may have leaked to Judith Miller but he's not charged with that. He may or may not have told Ari Fleischer about Valerie Wilson, but he's not charged with that.

As the defense pointed out in closing argument, Libby may have confused his conversation with Tim Russert with either the one he had with Robert Novak or the one he had with Matthew Cooper.

This is where reasonable doubt enters the picture. Reasonable doubt and the presumption of innocence form the bedrock of our criminal justice system. A reasonable doubt is a doubt based on reason and common sense. It can arise from the evidence presented or the lack of evidence. It's not about which side you believe more. If you think both sides could be right, or one side is probably, but not convincingly right or even that it's possibly right, Libby is entitled to the benefit of the doubt.

The Government was terrific in its closing argument on Libby's motive to lie. Peter Zeidenberg laid out a methodical case that was easy to follow and made a lot of sense. Patrick Fitzgerald had all of the case evidence so committed to memory it flew off his tongue. But, the trial isn't about Libby's motive to lie. It's about whether he actually did lie about his conversations with two reporters or was simply mistaken.

Ted Wells' closing was unfocused and meandering. But, he was emotional. The jury had to sense, as I did, that he believed with his whole heart in his argument. I think that will go a long way with the jury. William Jeffress more than adequately established the memory problems of all the witnesses in the case. The bottom line is, who's to say Libby's faulty recollections were a lie while the faulty recollections of the other witnesses were innocent mistakes?

In the end, this trial must be ruled by the presumption of innocence and reasonable doubt. The charges the Government brought against Libby are narrow and specific as to the exact statements about which he allegedly lied. In the end, no smoking gun was introduced to establish Libby lied as opposed to being mistaken. The lack of evidence presented must be held to work against the Government.

The smartest thing the defense did at trial was not to put Libby on the stand and subject him to what surely have been a withering cross-examination by Fitzgerald. The dumbest thing the Government did was charge too narrow a case and not indict Cheney along with Libby.

In other words, Fitzgerald missed the forest for the trees. Maybe he thought the case wasn't there. But in charging such a stripped down version solely against Libby, I have to believe at least one juror, like me, will have a reasonable doubt and refuse to convict.

Will I be disappointed if there's an acquittal? Yes, but in Fitzgerald, not the system. And if there's a conviction? Then I'll be disappointed in the Judge, for refusing to allow a memory expert to testify at trial. As much as I might prefer it otherwise, this case was about memory and reasonable doubt, not about the conspiracy that was proven to exist at the Administration's highest levels of power.