Libby and Cheney Won’t Testify, Says the Defense

February 14, 2007

Libby and Cheney Won’t Testify, Says the Defense

By NEIL A. LEWIS and SCOTT SHANE

WASHINGTON, Feb. 13 — Lawyers defending I. Lewis Libby Jr. against perjury charges surprised the courtroom on Tuesday by saying that they would rest their case this week and do so without putting on the stand either Mr. Libby or Vice President Dick Cheney.

Mr. Libby was Mr. Cheney’s chief of staff.

The decision means that Mr. Libby’s defense, which will formally end on Wednesday, will have spanned barely three days. Mr. Libby’s chief defense lawyer, Theodore V. Wells Jr., told Judge Reggie B. Walton that Mr. Libby had accepted the defense team’s recommendation to end their presentation swiftly and send the case to the jury by next week.

The decision could be viewed as a sign that Mr. Libby’s lawyers are confident that the prosecution failed to make its case.

Mr. Wells had earlier signaled strongly that he intended to call Mr. Libby and Mr. Cheney to testify, which suggests that the defense team recently analyzed the costs and benefits of putting them on the stand and concluded that their testimony would not, on balance, help Mr. Libby.

One likely factor in that calculation is that putting Mr. Libby on the stand would expose him to a cross-examination by Patrick J. Fitzgerald, the chief prosecutor, that could be withering. Mr. Fitzgerald complained that the defense had engaged in a “bait and switch” tactic by keeping Mr. Libby off the stand after repeatedly suggesting that he would testify.

Mr. Cheney’s testimony, which was much anticipated, would have set a precedent as the first appearance of a sitting vice president as a witness at a criminal trial. It was also expected to bolster a major part of Mr. Libby’s defense: that he was so consumed by the crush of high-stakes issues like global terrorism and Iraq that he might not have remembered all the details of his conversations.

But the trial threw up numerous instances in which Mr. Cheney took a personal role in managing the White House response to accusations from Joseph C. Wilson IV, a prominent critic of the Iraq war, that the evidence for going to war had been knowingly overstated. Mr. Cheney could have been exposed during cross-examination to uncomfortable questions about his close involvement in trying to undermine Mr. Wilson’s criticisms.

Mr. Wilson also said the identity of his wife as a Central Intelligence Agency operative was purposely leaked to the press in retaliation for his criticism. Mr. Libby is charged with lying to a grand jury and to F.B.I. agents investigating that leak.

The jury is expected to hear final arguments from both sides beginning next Tuesday.

Although the jury will not hear Mr. Libby in person, during the trial, prosecutors played eight hours of audiotapes in which Mr. Fitzgerald questioned him before the grand jury. The jury heard Mr. Libby giving his version calmly in the first two-thirds of the tapes and then seeming to become uneasy and less confident as Mr. Fitzgerald bore in.

Prosecutors have said Mr. Libby learned of the identity of Mr. Wilson’s wife, Valerie Wilson, from fellow administration officials in the summer of 2003 and discussed her with reporters. Mr. Libby swore that he had not discussed Ms. Wilson with reporters and believed that he had learned about her in a conversation on July 10 or 11 with Tim Russert of NBC News.

Judith Miller, formerly of The New York Times, and Matthew Cooper, formerly of Time magazine, testified for the prosecution that Mr. Libby had discussed Ms. Wilson with them. Mr. Russert testified that he never discussed Ms. Wilson with Mr. Libby.

The defense has argued that the three reporters have remembered their conversations incorrectly. And, if Mr. Libby testified incorrectly, it was because his memory was faulty because of the press of official business.

Mr. Libby’s lawyers were able to glean what would have been some of the benefits of Mr. Cheney’s testimony through another witness on Tuesday.

The witness, John Hannah, a former deputy to Mr. Libby who is now a national security adviser to Mr. Cheney, took the jurors on a tour of Mr. Libby’s concerns in the summer of 2003, including the Iraq war, Islamic extremists’ threat of a biological attack, Iranian and North Korean nuclear capabilities and diplomatic crises with Liberia and Turkey.

In Mr. Hannah’s account, Mr. Libby had barely time to draw an extra breath, starting with an early morning C. I. A. briefing “that covers the waterfront of the world.”

Mr. Hannah also provided testimony for another defense argument when he said Mr. Libby had a notoriously bad memory. “On certain things, Scooter just had an awful memory,” he said, using Mr. Libby’s nickname.

He said that on occasion Mr. Libby would tell him some idea in the afternoon, having forgotten that he, Mr. Hannah, had given him the idea in the morning. Mr. Libby, sitting at the defense table, laughed. Mr. Hannah said in response to a question from a juror — an unusual procedure used by Judge Walton — that Mr. Libby had a good memory for ideas and concepts.

Although Mr. Hannah testified for the defense for nearly two hours, the prosecutor, Mr. Fitzgerald, seemed to cut down much of the significance of his testimony in five minutes of cross-examination. Noting that Mr. Hannah had testified that he could usually have a few minutes alone with Mr. Libby only in the evening after the crush of business, Mr. Fitzgerald suggested that Mr. Libby would have devoted time only to matters of great concern to him in the week of July 6, 2003.

“If he gave something an hour or two that week, it would be something Mr. Libby thought was important, right?” asked Mr. Fitzgerald.

“Well, with regard to me, yes,” Mr. Hannah replied.

Left unsaid in the exchange was undisputed testimony that Mr. Libby spent nearly two hours on Tuesday, July 8, with Ms. Miller, then a Times reporter. Ms. Miller has testified that Mr. Libby told her in detail about Ms. Wilson at the meeting. Mr. Libby acknowledged meeting Ms. Miller to counter Mr. Wilson’s accusations, but said he did not discuss Ms. Wilson.

Underlying Mr. Hannah’s testimony was a fierce legal battle between the defense team and prosecutors over how much the jury should be told of Mr. Libby’s busy schedule now that he is not going to testify. One of his lawyers, John Cline, said, “We want to show he was caught in a tornado of information.”

Judge Walton ruled that without Mr. Libby’s live testimony he would not allow Mr. Wells to argue in his closing that the issue of Ms. Wilson was far less important than the national security issues on his agenda.

“I’ve said that relative importance is not going to be an issue on the table if Mr. Libby doesn’t testify,” he said.

Jill Abramson, managing editor of The New York Times, testified earlier on Tuesday that she could not remember a conversation with Ms. Miller after the July 8 meeting with Mr. Libby. Ms. Miller had testified earlier in the trial that she had suggested to Ms. Abramson that day that The Times assign someone to look into the role of the Wilsons.

Ms. Abramson, who was on the witness stand for less than five minutes, said, “It’s possible I occasionally tuned her out,” but said she had no recollection of the conversation.