The trial proceedings opened with a bang today in the Libby criminal trial.  There was some new information presented during the opening statements from both the prosecution and the defense, and the first witness had already been on the stand by the close of court today.

Jury selection was completed yesterday, and Judge Reggie Walton began this morning with the charge to the jury — which is, essentially, a primer on how to best listen to the evidence and testimony presented, how to consider it fairly and what the law is with regard to the charges under which the defendant was indicted.

Judge Walton has a very open and folksy style which allows him to communicate well with the jurors.  In my years of trial experience, I've learned to pay attention to the way a jury absorbs this first step in the case — often, you'll see the jurors nod off during some of the legal descriptions (which, honestly, can get fairly tedious at times, even for the lawyers), but the Libby jury was very attentive throughout — this is a good sign for the rest of the trial in terms of their willingness to pay attention to detail. 

At one point during the charge, Judge Walton characterized the jurors as "judges of the facts," which is a wonderful way of bringing them into a very solemn duty in a very empowering way — this was deftly done by the judge.

The first opening statement was given today by the prosecution, with Patrick Fitzgerald leading off for the government.  His opening was concise, very tightly constructed, and left no doubt that he was very clear about the reasons for which he sought an indictment for I. Lewis Libby from the federal grand jury for the five count indictment returned last October.  Fitzgerald's style presents as someone who puts together the pieces of the puzzle until they fit together as a tight whole — and he certainly tried to do that with his opening this morning.

The stage was set from the start of the opening with regard to pushback against Amb. Joseph Wilson, whose op-ed in the New York Times (and his earlier unattributed quotes to other journalists) went to the heart of the credibility of the Bush Administration's foundation — or lack thereof — for starting the war in Iraq.  Fitzgerald walked the jury back to the "sixteen words" in the President's State of the Union address on January 28, 2003 — and the fact that Amb. Joseph Wilson's allegations brought the possiblity that the President lied to the American public in that speech right into the living rooms of average Americans.

Because that credibility was being challenged so close to the 2004 election cycle, because the credibility the Dick Cheney in particulr was being directly questioned, there was substantial pushback from the White House, and especially from the office of the Vice President, and Scooter Libby was tasked with getting that message out to the media. 

Fitzgerald walked the jurors through the five felony charges — obstruction of justice, two counts of false statements, and two counts of perjury — and the elements of each of these charges that the government is required to prove.  Fitzgerald then went through the expected evidence and testimony from various government witnesses by placing each into context on a timeline that very methodically, and effectively, laid out the government case against Libby.

There was a very interesting new tidbit about the July 12, 2003, flight on Air Force II, on which Scooter Libby and Cathie Martin (Cheney's then press secretary), seated at the back of the plane, discussed some questions that Matt Cooper of Time had for the Vice President about issues of credibility on Iraq.  Libby then went to the front of the plane and discussed these issues privately with Cheney, and returned to talk with Cathie Martin with Cheney's handwritten notes on how the Vice President wanted Libby — not Martin — to respond to the press inquiries.   That Cheney was directly involved in crafting specific messaging that he then directed his Chief of Staff and National Security Advisor to disseminate to the press is, to say the least, quite unusual and interesting.  (And the mechanics in how the discussion occurred are very specific and new details.)

Fitzgerald also used a very effective means of replaying the defendant's grand jury testimony with regard to the perjury counts — playing the actual tape of the defendant's voice as he testifed before the grand jury under oath.  The jurors in the criminal trial were riveted as they listened to the defendant's voice, while they watched his reaction live in the courtroom as he was also hearing his testimony. 

Ted Wells provided the opening statement for the defense today.  Wells is a very skilled trial attorney, who had an effective opening line for the jurors from the start:  "I am Ted Wells.  And I speak for Scooter Libby."  That set the tone from the start for Wells, who proceeded through a very lengthy opening statement which took several hours today — going through a number of issues and highlighting specific weak points for witnesses that will likely be key to the prosecution's case.

Wells began with a fairly well used defense attorney strategy in cases where the primary evidence will be via witness testimony and not through a lot of physical evidence (for example, forensic evidence,  contemporaneous documents, and things like that).  The "he said, she said" argument gets to the question of who the jurors will find most credible — and can be very convincing in terms of argument when you have few witnesses, most of whom are far from credible. 

I saw this a lot, for example, in a petty criminal case wherein both the accused(s) and the victims all had long prior criminal histories — in those cases, it can be very easy to impeach the credibility of the people who testify.  After sitting through the lengthy opening that Wells gave, I can say that there are clearly some witnesses the defense team is hoping to target for credibility concerns.

And at the top of the list today is Karl Rove — who is being set up in this case, at least from the opening, as the Great Hope of the GOP, and a man who had to be protected at all costs, including making Scooter Libby the fall guy.  Frankly, that's going to be a tough defense argument to make considering the number of people with whom Libby directly had conversations about Amb. Joseph Wilson, Valerie Plame Wilson and pushing back on the allegations that Wilson made about the lack of foundation on WMD claims.  But it will certainly be interesting to see them try to repeatedly throw Karl Rove under a bus in open court, nonetheless.

Additional witnesses who share in this blame are, in no particular order:  the CIA, which Wells characterized as "incompetent;"  Ari Fleischer, who apparently pleaded the Fifth and refused to testify before the Grand Jury without an immunity waiver to protect himself from incrimination with his testimony (look for this to be a big point of contention on cross examination when Fleischer testifies); every journalist with whom Libby had contact, and especially the entire reporting staff at NBC and MSNBC, and also Matt Cooper and Judy Miller, whose ability to recall any details was described as fuzzy and muddled.  (So much for thanks from Team Libby for Judy, I'm afraid.)

Two amusing points today:  Wells described Don Imus as "the guy with the cowboy hat."  Repeatedly.  (That ought to make for some amusing morning radio blather.)  And Wells characterized Libby's call to Tim Russert to exert pressure on Chris Matthews' Hardball coverage of Dick Cheney as a simple "viewer complaint."  Because, you know, every viewer gets to talk directly with Tim Russert when they call to voice a concern — it wasn't the power of the office of the Vice President which got him straight to the Washington News Bureau Chief's phone line.  Nope.  Not at all.

One of the issues that became very clear as Wells' opening droned on today is that Vice President Cheney's office has been operating as a second National Security apparatus — if not the pre-eminent one, over and above what Condeleeza Rice had been running at the time — because of the high level national security decisions that were being made, pushed, and countermanded through what the Vice President was ordering Libby to disseminate to the media on his behalf.

We ended the day with the testimony of Marc Grossman, former number three man at the State Department.  One of the more interesting tidbits to come out about Mr. Grossman is that, the night before his statement was taken by the FBI, he had a visit from Richard Armitage.  Armitage told Grossman that he had been the person who initially leaked to Robert Novak regarding Valerie Wilson.  This is a very odd occurence — Grossman characterized it on the stand as Armitage giving him a professional courtesy by telling him up front, himself, and then saying he could feel free to mention it to the FBI — which Grossman did the next day.  I find it very odd indeed that a witness who had already been debriefed by the FBI, at the level that Armitage was, would feel as though it was acceptable to discuss his own debriefing with Federal agents with someone who was about to also be debriefed.  Very odd indeed.

The outstanding issue in my mind on this still remains who was it that tipped Novak off to talk to Armitage about Valerie Wilson in the first place?  Did Armitage bring up the issue of Valerie Wilson's identity on his own?  Or was Novak hinting around the edges about the Wilsons during the meeting that he had with Armitage at the State Department?  And if Novak was hinting, who put that thought in his head to even ask about Valerie Wilson — and why?  Hopefully, we will get some answers to this during the course of this trial.

Wells concentrated on a particular meme of threes in hisopening — that I think will likely get repeated in his closing at the end of the trial:  three calls, three reporters, three months later.  Unfortunately for Wells, these aren't supported by the facts in the way that he wants the jury to believe them to be — and it will be very interesting to see how the jury reacts to this as the evidence is presented.

Finally, a note about evidence.  Testimony is evidence, the same as some documentary or physical/forensic sample is evidence.  Wells attempted to shuffle around this fact today, but expect Fitzgerald's team of attorneys to chip away at this by pointing out every inconsistency in Libby's statements to the FBI and to the Grand Jury.  This is going to be a very interesting trial to watch.

Personally, I found Fitzgerald's very straightforward and methodically organized style more appealing today.  I felt that Wells went on too long, in a disjointed and freewheeling style, and that he was not only losing members of the public and the press, but that he started losing members of the jury with too much repetition and attempts to muddy the evidentiary waters with some confusion and counterspin. 

The cross-examination of Marc Grossman, the first witness called in this case, will continue tomorrow, along with the testimony of many more witnesses to come.  All this, and we haven't even gotten to Judy Miller yet…

Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com