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Scooter Libby’s conviction appeared to shock just about everyone — everybody, that is, except D.C. lawyers. Perjury cases are supposed to be hard to prosecute. Defense attorneys Theodore Wells Jr. and William Jeffress Jr. were the latest dream team, and it took the jury nearly 10 days to deliberate. Yet despite the convictions on four of five counts, Jeffress says “we wouldn’t change a single one of the major decisions.” “We knew it was a close case, but we really thought our themes made more of an impression,” Jeffress said last week in an interview with Legal Times. Many defense lawyers interviewed about the trial were wary of questioning whether the defense team botched the case. Rather, most spoke about the case against the former chief of staff to Vice President Dick Cheney as if it was a loser by the time Libby’s indictment was handed down. They also credit Special Counsel Patrick Fitzgerald with bringing a narrow, almost airtight case. “The real question is how did Mr. Libby get himself in this position to begin with?” says Thomas Holliday, a defense attorney at Gibson, Dunn & Crutcher. The defense seemed to be sending the jury in more than one direction, searching for any weakness rather than building a single theory and sticking with it. Sometimes they appeared incredulous about witnesses’ forgetfulness even when they were arguing the same about their client. Sometimes they seemed focused on portraying Libby as a White House scapegoat while also arguing that almost everyone, Libby included, had done no more than make an innocent mistake. Few lawyers would second-guess the defense’s decision to keep Libby off the stand; most are reluctant to let their clients testify because it takes just one slip-up to blow the entire case. And many agreed that calling Cheney could have opened a Pandora’s box. Though Wells hinted that Libby and Cheney might testify, he did not promise the jury either would be on the stand. But debate continues. Defense lawyers, law professors, and partisan pundits will continue to question Fitzgerald’s decision to prosecute Libby for perjury when no one was charged for the central crime under investigation. Others wonder whether the defense should have taken a different tack toward the witnesses. And some say the defense was just plain bested by Fitzgerald. “I think it’s a lesson of good prosecutorial approach,” says Robert Bennett, a partner at Skadden, Arps, Slate, Meagher & Flom, who represented former New York Times reporter Judith Miller. “The biggest advantage for a defense lawyer is when the prosecution has too much fat in a case. You over-prepare your cases and you under-try them.”
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Yet as the jury deliberations inched past the first and then second weekend, not everyone was sanguine about the outcome. Jury questions pointed toward a split. Even Fitzgerald admitted during a press conference after the verdict that he had been a bit “worried,” noting “that lawyers get paid to worry” though “some get paid more than others.” Of course, the final word on the Libby verdict is far from over. Appeals will likely take many months. Though it’s unlikely Judge Reggie Walton will grant the defense’s request for a new trial, the wild card is whether Walton will allow Libby to remain free on bond pending appeal after sentencing, set for June 5, on four counts of perjury, obstruction of justice and false statements. He is likely to get one to three years in prison. To do so requires that the appeal have substantial merit. But such a decision could give the defense time to drag out an appeal until after the November 2008 election — a time when a pardon may be more politically palatable. But Jeffress says the appeal is likely to take far less time, and he is hoping for a pardon sooner rather than later, even though the White House has been silent on the issue. TROUBLE FROM THE START Many lawyers who followed the trial say the biggest handicap lay in Libby’s early legal strategy — to speak to the grand jury multiple times. As a public official, it would have been nearly impossible for Libby to keep mum and keep his job, but some lawyers question the judgment of Libby and his lawyer at the time, former colleague and Dechert partner Joseph Tate. Tate declined to comment. “The trial team inherited an exceptionally detailed record of sworn testimony that put them in quite a box,” says Phil Inglima, a defense attorney at Crowell & Moring. Libby’s grand jury appearances left an eight-hour taped record that eventually became the centerpiece of the government’s evidence. In that testimony played at trial, Libby came across as kind and gracious, his voice soothing and calm even under repetitious questioning. But some of his own words stood out: his “surprise” at learning from NBC’s Tim Russert that former Ambassador Joseph Wilson’s wife, Valerie Plame, worked at the CIA, and, particularly, his offhand remarks like, “I didn’t even know he had a wife.” The other problem was that most perjury cases rely on one person’s word against another — here, Fitzgerald had 10 witnesses to dispute Libby’s version. Behind Libby’s trial strategy were two very different lawyers — one the folksy Ted Wells, a tall, one-time college football player, and the other, Bill Jeffress, a pointed questioner more than a foot shorter than Wells. A third lawyer, John Cline, was key to the pretrial strategy of seeking the admission of classified material about Libby’s work in the Office of the Vice President. Though Wells took the lead at trial, both he and Jeffress handled legal arguments and cross examinations. But their point was simple. “People do not lie for the heck of it,” Wells told the jury during opening statements. “And Libby had no motive to lie.” Speaking with the cadence of a well-practiced preacher, his confidence showed. “The only way I lose this case is if someone starts to interpret the facts based on their feelings about the war,” Wells said. At first, the defense lawyers tried to chip away at the credibility of Fitzgerald’s witnesses. During cross examination, government officials had trouble remembering their conversations about Plame with Libby — the same ones Libby said he forgot. They even seemed to score points with the argument that Libby was a “scapegoat” — an idea some lawyers said seemingly contradicts the defense notion that no crime was committed. As juror Denis Collins later noted, many fellow jurors believed Libby was a “fall guy” for the Bush administration. But as the prosecution’s case wore on, its witnesses became stronger and the testimony more damaging. Former press secretaries Cathie Martin and Ari Fleischer and Cheney’s general counsel David Addington — all loyal Republicans — painted Libby as a man focused on Wilson. The number of witnesses began to add up, too. Some attorneys question whether the defense attorneys were too harsh on the journalists, particularly on Miller, for whom the jury had a good deal of sympathy. Yet the defense managed to hurt the credibility of at least one witness — former Time magazine reporter Matthew Cooper. On cross examination, Jeffress tore apart Cooper’s note-taking methods. The minutiae of the dissection may have seemed like overkill, but it was enough, as juror Collins noted, to create reasonable doubt — and the only acquittal, on one count of false statements to the FBI. �GIVE HIM BACK’ Libby’s lawyers decided against a showy defense, perhaps because they were confident they had created reasonable doubt. They thought Libby had come off well during the grand jury testimony. And though Cheney had been standing by to testify, he wasn’t called “because he couldn’t really help us on Scooter’s conversations with journalists,” Jeffress said. So in barely three days of testimony, they paraded in seven journalists to say Libby didn’t tell them anything about Plame. But more important than this defense-by-other-examples was Walton’s ruling limiting Libby’s memory defense and blocking the admittance of some classified material after Libby chose not to testify. Though the defense was able to make a stripped-down argument about Libby’s busy schedule, Wells used his closing to make more of a personal plea than a straightforward breakdown of the witnesses’ testimony. “Just give him back to me. Just give him back,” Wells concluded. The closing did not win Wells the case and some attorneys found it hokey and off point. Others, like Kirby Behre, a former prosecutor, disagreed. “Sometimes the best defense is one that isn’t so clear,” he says. “Sometimes the best defense is to keep the burden on the government.” But sometimes the government meets that burden.

Emma Schwartz can be contacted [email protected].

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