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No opinion on the Bush administration’s reasons for invading Iraq? Check. How about Vice President Dick Cheney? Check. And what about Tim Russert from “Meet the Press”? None? Check. Well then, sounds like you’re the ideal juror for the trial of I. Lewis “Scooter” Libby Jr. But this is Washington, the capital of opinion-making and opinion-shaping. So finding a pool of jurors without a care about the Bush administration, the media, or the Iraq War proved a formidable challenge last week during three days of jury selection in the U.S. District Court for the District of Columbia. Lawyers questioned 49 potential jurors but dismissed 19, largely because they said they could not be fair to the former Bush administration official. That politics played such a role in jury selection was hardly surprising in this largely Democratic city, but it left the court with only 30 qualified picks for the final round of the process — six shy of the number required by law. So on Jan. 22 both sides will resume questioning prospective jurors and choose a panel of 12 jurors and four alternates for the trial, which is expected to last at least four weeks. Libby, 56, the vice president’s former chief of staff, is charged with five felony counts of false statements, obstruction of justice, and perjury in connection with what he told the FBI and a grand jury about conversations he had with three reporters in 2003. He was the only person charged as a result of Special Prosecutor Patrick Fitzgerald’s 2 1/2-year investigation into whether classified information about Valerie Plame’s CIA employment was illegally leaked to the press. Questions about the Bush administration are critical in selecting this jury because the case will pit the testimony of Libby, and most likely that of Cheney, against the three reporters — NBC’s Russert, Time‘s Matthew Cooper, and Judith Miller, formerly of The New York Times. Finding jurors without strong opinions has not been easy. Each day, both sides added newer and bolder questions to their lists. By the third day, Fitzgerald, who had very little to ask prospective jurors on the first day, began to pre-empt some of the defense’s extensive grilling about jurors’ views on the Bush administration’s decision to go to war. His tactic: No matter what they felt, he simply wanted to know if they could separate their feelings about Iraq from evidence presented in the case.
RELATED STORIES
• Scooter Libby’s Defense: A Man Who Knew Too Much (December 18, 2006)• Will Scooter Libby Get a Pardon for Christmas? (November 20, 2006)• Walton Denies Classified Documents as Evidence in Libby Trial (September 25, 2006)• Motion to Postpone Libby Trial Met with Reservations (July 10, 2006)• Libby’s Lawyers Look to Documents for Defense (June 5, 2006)

Though some Bush critics made it into the final pool, the least controversial candidates knew very little about politics. Those who were easily accepted included an insurance policy analyst who said she didn’t have enough information to have an opinion on the war, a Federal Trade Commission lawyer who said she had no feelings about the Bush administration, and a retired Environmental Protection Agency bureaucrat who said the only thing he reads is the Bible. Though almost all who voiced an opinion had harsh words for President George W. Bush, there were a few finalists who were more favorable toward the president. One woman, a procurement official for Lockheed Martin whose husband was a reservist about to go to Iraq, said she “respect[s] the commander in chief for his decision to go to Iraq.” And a former journalist in her 20s who said she voted for Bush made the cut. Yet the process seemed reminiscent of an observation Mark Twain once made that although the American jury system “is superior to any in the world,” its “efficiency is only marred by the difficulty of finding twelve men every day who don’t know anything and can’t read.” TRUTH BE TOLD Take, for instance, the 20-something Minnesota-born man who works as a financial analyst. Even by Washington standards, where CNN often is substituted for ESPN at bars, he was a well-informed citizen. He could recount not only the basic narrative of the investigation into the leak of the CIA agent but knew that Libby was charged with something other than the actual leak. Even though he believed he could be fair, he said he wasn’t sure his unhappiness with the Bush administration’s reasons for going to war in Iraq wouldn’t affect his perception of one of the defense’s likely star witnesses: Cheney. “I can’t honestly say it wouldn’t,” he said. “I would try to let it not [affect me] and I would like to think that I could do that.” He paused. “I can’t say subconsciously I’m not thinking he’s a less credible person.” It was too much. The man was dismissed because, as Libby’s lawyer Theodore Wells Jr. told him, the case against the vice president’s former chief of staff rests not simply on who is telling the truth, but on the jurors’ choice of “who to give more weight to.” The man’s experience on the stand was mirrored by those of a few other jurors who, when pressed, admitted they too could not approach Libby’s case with a completely clean slate. Some were not shy with their criticism. “I don’t believe any statement by the Bush administration,” said one juror who was quickly dismissed. But others found the tug between their political opinions and their belief in the judicial system clearly distressing. One woman, who said she “feels very strong about the current administration and their policies,” wanted to think that her belief that defendants are innocent until proven guilty “would override” her feelings about the administration. But she was dismissed after admitting that she “can’t be sure about that.” In the end, the decision of whom to excuse and whom to keep on for another day wasn’t always so straightforward. For instance, a Web architect whose partner works in the D.C. Federal Public Defender’s office was clearly bothered about the situation in Iraq. “It’s the kind of thing where we can’t stay and we can’t go,” he said. “It’s a little troubling to be at the mercy of that kind of randomness in foreign policy.” But the man said that wouldn’t affect his judgment, so there was nothing either side could do to excuse him at that point. (Once the 36 potential jurors are chosen, the defense can strike 10 jurors and the prosecution six. Each side gets another two strikes for the four alternatives.) On the other hand, lawyers labored over a woman who works as an auditor in the Department of Homeland Security’s Office of the Inspector General. She said she was skeptical of the administration’s rationale for war and, found herself “skeptical of politicians’ credibility,” and that included Cheney. Though she swore that she’d treat him no differently than any other witness, Judge Reggie Walton was not convinced. After much debate at the bench with the lawyers, the judge decided she, too, had to go. The Bush administration’s policies, however, weren’t the only cause for concern. Two potential jurors were dismissed for financial hardship, one for medical reasons, one because he was a convicted felon, and another who said he was biased against law enforcement. And then there was the National Public Radio reporter. Though this prospective juror, who often reports from Iraq, was certainly no admirer of the Bush administration, his biggest beef was with Miller, the former Times reporter. He questioned her reporting in the lead-up to the Iraq War and said he could not see her as a credible witness. For that, he too was sent on his merry way. No doubt the reporter was grateful, because he needed to leave for New York to accept an award.


Emma Schwartz can be contacted at [email protected].

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