The New York Times
Saying He Was Misled by Defense, Judge in Libby Case Puts Some Evidence Off-Limits
By NEIL A. LEWIS
WASHINGTON, Feb. 14 — The lawyers defending I. Lewis Libby Jr. against perjury charges rested their case on Wednesday, but not before suffering a series of defeats in rulings by the presiding judge.
The judge, Reggie B. Walton, expressed in the strongest terms yet that he had been misled by the defense team about whether Mr. Libby would take the stand in his own defense.
Judge Walton said he “believed all along in the process that Mr. Libby was going to testify” and that his lawyers were now “playing games with the process.”
He made his remarks with the jury out of the courtroom as he ruled that the defense would no longer be able to use some evidence, including something the jury had already heard: a statement the government agreed to saying Mr. Libby, as chief of staff and national security adviser to Vice President Dick Cheney, “worked long hours, received daily intelligence briefings and attended many meetings concerning important matters of national security.”
Mr. Libby faces five felony charges that he lied to a grand jury and F.B.I. agents investigating the leak of the identity of a C.I.A. operative, Valerie Wilson, to reporters in the summer of 2003 .
Mr. Libby denied under oath that he had passed information to reporters about Ms. Wilson, and his lawyers have put forward as a part of his defense the assertion that he was too preoccupied with the crush of vital national security issues to have remembered any conversation about Ms. Wilson or her husband, Joseph C. Wilson IV, a former ambassador.
Judge Walton said his ruling meant that the chief defense lawyer, Theodore V. Wells Jr., would not be able to make that argument to the jury. Mr. Wells will be permitted to tell the jury that Mr. Libby had “a lot on his plate,” Judge Walton said. But because Mr. Libby is not testifying, Mr. Wells cannot argue that those issues were of greater importance in Mr. Libby’s mind “as compared to the issue of Valerie Plame and Ambassador Wilson.”
The identity of Ms. Wilson, who is also known by her maiden name, Valerie Plame, first became public in July 2003 after The New York Times published an Op-Ed article by Mr. Wilson saying the White House had distorted intelligence to justify invading Iraq.
The conclusion of the defense case means the jury will hear closing arguments when they return on Tuesday and will probably begin deliberating Wednesday after instructions from the judge.
Before the jurors departed on Wednesday afternoon, they filed into the courtroom, all but one wearing bright red T-shirts with a white valentine heart over their clothes, to the uncertain laughter of many in the courtroom.
But as one juror, a retired North Carolina schoolteacher, rose to speak, Judge Walton became visibly anxious that the juror might say something inappropriate that could threaten the trial. Jurors are not supposed to speak and are supposed to make any concerns known through notes to the bench.
The juror said they were wearing the shirts to express their fondness for the judge and the court staff on Valentine’s Day. He then added, to the judge’s growing discomfort, that they were unanimous in this sentiment, but they would all be independent in judging the evidence in the Libby case.
The sole juror who apparently declined to wear the shirt was a woman who had been a curator at the Metropolitan Museum of Art.
In their three-day presentation that concluded on Wednesday, defense lawyers offered a spare and indirect attack on the prosecution’s case. In addition to keeping Mr. Libby off the stand, they announced they would not present Mr. Cheney as a witness. The possibility of Mr. Cheney’s taking the stand was strongly suggested by the Libby team as well and was greatly anticipated as the first time a sitting vice president was to testify in a criminal trial.
The prosecution, beginning three weeks ago, presented testimony from Mr. Cheney’s former communications director, a senior state department officials and two C.I.A. officials who said they had told Mr. Libby about Ms. Wilson. They also presented the testimony of two reporters who said Mr. Libby had discussed Ms. Wilson with them.
The testimony of a third reporter, Tim Russert of NBC News, was a pivotal part of the prosecution case, and defense lawyers tried in vain on Wednesday to persuade Judge Walton to have him recalled in order to challenge his credibility.
The judge ruled against two motions for Mr. Russert’s recall. Mr. Russert, in his testimony, said he had not told Mr. Libby about Ms. Wilson, as Mr. Libby had asserted.
Mr. Wells had argued that Mr. Russert may have been biased in favor of the government because of an agreement his lawyer reached with prosecutors. Before Mr. Russert agreed to testify for the government, he challenged the subpoena from Patrick J. Fitzgerald, the chief prosecutor, arguing that his testimony would violate deeply-held principles that a reporter should not discuss his confidential conversations.
But at the time, Mr. Russert had already talked with the F.B.I. about his conversations with Mr. Libby, and Mr. Wells asserted that Mr. Fitzgerald had agreed not to raise the matter because it would have exposed Mr. Russert as a hypocrite, undercutting his television statements that he was standing up for the First Amendment.
Judge Walton took the unusual step of questioning Mr. Russert’s lawyer, Lee Levine, who said he and Mr. Russert had never discussed the agreement with the prosecutor not to raise the conversation with the F.B.I. agent. Judge Walton then ruled it was irrelevant to the case.
Mr. Libby’s lawyers vigorously protested Judge Walton’s rulings, intent on creating an appeals record if Mr. Libby is convicted.
Judge Walton said he would be shocked if he were reversed on appeal over his rulings about Mr. Libby’s not testifying.
If that happens, he said, “I’ll hang up my spurs.”