Having attended several sessions of the Scooter Libby trial, I was not surprised to hear that Libby and Vice President Cheney would not be testifying. The case against Libby is surprisingly thin, and from the point of view of the defense, the goal is to get Libby off, not put on a show for Keith Olbermann, Chris Matthews, and the left-wing blogs. The defense has apparently concluded that the government has not made a compelling enough case to convict Libby. When Matthews found out that they weren’t going to testify, he said he was “flabbergasted.” “We thought we were going to have a grand show,” said Matthews.

Matthews’ disappointment was palpable. “It seems to me if we had Cheney on the stand we would find out how we went to war with Iraq. We’re not going to find that out again, right?”

As Accuracy in Media editor Cliff Kincaid and I wrote in a previous piece, the media have been on trial in this case, and they haven’t liked it. In that column, we described what the Joe Wilson/Valerie Plame/CIA leak case was really about, and why it was important to rebut the charges made by Wilson in his July 6, 2003 op-ed in the New York Times that led to the appointment of Special Prosecutor Patrick Fitzgerald and the indictment of Vice-Presidential aide Libby.

It has revealed much about the practices and procedures journalists use in dealing with their sources. We also have seen how unscientific and imprecise is the process of doing an interview, taking notes, and relying on those notes for stories or future reference. And we have seen how the mind plays tricks, affecting the memories of reporters and government officials alike.

After nearly three years of investigating, Fitzgerald indicted no one for leaking classified information, or for any conspiracy to discredit Joe Wilson or anyone else. The charges against Libby are perjury and obstruction of justice related to Fitzgerald’s investigation into who leaked the fact that Joe Wilson’s wife, Valerie Plame Wilson, worked for the CIA, and why they leaked it. Her name and position were first made public in a column by Robert Novak that was delivered to newsrooms by the Associated Press on July 11, but ran in newspapers and on the Internet on July 14.

Libby was accused of telling the FBI investigators and the grand jury that he had first learned of Plame’s identity and employment from talking to reporters, though there was evidence that he had in fact learned it earlier from his boss, Vice President Cheney, and had discussed it with people in the State Department and CIA before his discussions with reporters.

During opening arguments, Ted Wells, Libby’s lead attorney, stated that Libby’s memory of events may have been somewhat confused because of all of the important matters of national security that he was tasked to deal with. Even so, Libby had told the grand jury and the FBI agents who interviewed him that yes, in fact he did first learn about Wilson’s wife from Cheney around June 12, well before any of the meetings or conversations with the three reporters the prosecution relied on for its case: Judith Miller of the New York Times, Tim Russert of NBC News, and Matt Cooper of Time magazine.

We now have the transcript of Libby’s grand jury appearances of March 5 and March 24 of 2004. They totaled more than eight hours and were played for the jury. In this first part of his grand jury testimony, on page 33, Fitzgerald was asking Libby about his conversations with Cheney in early June of 2003. He asked Libby:

Q….Before we look at your actual notes, how certain are you from memory that the information about the wife [Valerie Plame Wilson] working in the functional office at the CIA, the wife of this former ambassador, was information that Vice President Cheney imparted to you as opposed to information that you imparted to Vice President Cheney?

A.  Oh, I’m pretty certain of that.

Q. And what makes you certain?

A. I sort of remember him saying it, you know, in an off sort of curiosity sort of fashion. That’s my recollection of it anyway.

Libby had been explaining that Cheney gave him points of rebuttal to challenge the accusations that Wilson was making regarding pre-war intelligence, and his view that the Bush Administration–to help sell the Iraq war to the American people and the United Nations–had “twisted” evidence regarding whether or not Iraq was attempting to purchase yellowcake uranium from the African nation of Niger. At the time Cheney was giving these points to Libby, to tell reporters, the public wasn’t aware of Wilson by name, only as an anonymous source written about in a column by Nicholas Kristof of the New York Times and an article by Walter Pincus of the Washington Post.

So there it is. Libby told the grand jury, and apparently the FBI, that he first learned of Wilson’s wife from Cheney. The points Cheney wanted Libby to make to reporters were that he had not requested a mission to Niger, that they had not gotten a report back from the mission to Niger until the articles began appearing in May, and that Cheney had seen the National Intelligence Estimate and that’s what he took to be authoritative. According to Libby, Cheney did not ask him to include the information about Wilson’s wife when rebutting Wilson’s accusations.

So why is he being charged with perjury for saying he first learned about it from Tim Russert? Later, in the same grand jury testimony, on page 85, he again confirmed that he learned it on June 12th or before, from Cheney.

Q. And are you telling us under oath that from July 6th to July 14th you never discussed with Vice President Cheney whether Mr. Wilson’s wife worked at the CIA?

A. No, no, I’m not saying that. Only July 10 or 11 I learned, I thought anew, that the wife–that, that reporters were telling us that the wife worked at the CIA. And I may have had a conversation then with the Vice President either late on the 11th or on the 12th in which I relayed that reporters were saying that. When I had that conversation I had forgotten about the earlier conversations in which he told me about–reflected in my notes that we went over this morning, in early June, before the [Walter] Pincus article, when he had told me about that the wife worked at the CIA. I had just forgotten it.

Q. …who did you speak to on July 10th or 11th that you recalled learning again, thinking it was for the first time, that Wilson’s wife worked at the CIA?

A. Tim Russert of NBC News, Washington Bureau Chief for NBC News.

So think about it. Was Libby really trying to convince this grand jury that he first heard about Wilson’s wife from Russert? Or other journalists? It’s clear he was saying he first learned it from Cheney, but had forgotten that, and when Russert told him, he thought he was hearing it for the first time. But Russert says he never told that to Libby, and he couldn’t have, because he didn’t know it at that time.

There is one journalist, Byron York of National Review Online, who has done an outstanding job of covering this trial, keeping it in its proper context and perspective, and discovering new insights throughout the proceedings. By reading the archive of his articles on the trial, it will be very apparent that the prosecution case collapses because of the lack of weight of its main witnesses. Judith Miller figuratively collapsed under cross examination. She had not previously even remembered having a June 23rd meeting with Libby, for which she provided great detail in court. Matt Cooper mentioned Wilson’s wife to Libby at the end of a conversation, to which Libby replied something to the effect of, “Yeah, I heard that too.”

And Russert, the third reporter whose testimony provided the basis for the indictments, says Libby never said anything to him about Wilson’s wife. Libby, in the conspiratorial world of Olbermann, Matthews, and their on-the-scene reporter David Shuster, was the point man in this big conspiracy to retaliate against Wilson, who they obviously believe was a truth-teller and whistleblower. Once again, Byron York has pointed out evidence introduced in this trial that suggests a timeline previously unknown regarding the arrangements for Wilson’s trip to Niger. It now appears that his wife actually recommended him for the trip before Cheney was even briefed on the Niger uranium situation.

The most interesting day of the trial was the day six well-known journalists were called to testify for the defense. In essence, Bob Woodward, Walter Pincus and Glenn Kessler of the Washington Post, David Sanger of the New York Times, Evan Thomas of Newsweek and syndicated columnist Robert Novak all testified that they had spoken with Libby during the period in question, and none recalled Libby ever telling them about Wilson’s wife. If the conspiracy theory were accurate, Libby would have mentioned it to some of them.

This was particularly embarrassing for the highly regarded Tim Russert. Byron York wrote about some of Russert’s memory problems, and his problems with the far-left bloggers like Arianna Huffington, who described how badly his credibility had been damaged from her perspective. During a tough cross-examination by Ted Wells, Russert acknowledged having talked to an FBI agent in November of 2003 about his conversation with Libby back on July 10 or 11, and then responding to a subpoena to appear before the grand jury by saying in an affidavit on June 4, 2004 that “I cannot provide such testimony without violating the understanding that I share with my sources that our communications, including the fact that we have communicated at all, will be held in confidence.” It seemed clear to Wells that Russert had waived that confidentiality by voluntarily talking about it previously to an FBI agent.

While discussing why Russert gave his sworn testimony in a lawyer’s office, with his lawyer present, and not in front of a grand jury, Russert stated that he wasn’t aware that people who testify before a grand jury are not allowed to have their attorney with them at that time. Russert then acknowledged that he had been a practicing attorney for a short period, which made it all the more surprising that he was unaware of that fact. Later, with the jury out of the courtroom, the defense team sought to introduce video clips in which Russert made it clear that he had previously understood that witnesses before a grand jury did not have their lawyers present, in the context of something that happened during the Clinton administration.

Russert was saved by the judge from having to discuss Andrea Mitchell’s comments, which we mentioned in our previous story. Mitchell, chief foreign correspondent for NBC, declared on a CNBC show on October 3, 2003, that Plame’s CIA affiliation was “widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger.” Mitchell later claimed that she had misspoken, and was confused.

But her comments became more relevant after hearing an audio recording played while Bob Woodward was on the stand. The conversation was between Woodward and Richard Armitage, then-Deputy Secretary of State, who later admitted to the FBI and Fitzgerald that he had in fact been the person who leaked the identity of Joe Wilson’s wife to Robert Novak, and, it turned out, to Bob Woodward. In a conversation between Woodward and Armitage, Woodward said: “It was Joe Wilson who was sent by the agency. I mean, that’s just…”

Armitage replied: “His wife works in the agency,”.

“Why doesn’t that come out?” asked Woodward “Why does…”

“Everyone knows it,” said Armitage.

“That have to be a big secret?” asked Woodward. “Everyone knows.”

“Yeah,” said Armitage. “And I know [expletive deleted] Joe Wilson’s been calling everybody. He’s pissed off because he was designated as a low-level guy, went out to look at it. So, he’s all pissed off.”

So here we have Armitage saying “Everyone knows it,” and Andrea Mitchell saying it was “widely known” prior to the publication of Novak’s column. Armitage is said to have been a source for some of Mitchell’s reporting in the past. And just who was included in the “everybody” that Wilson called?

What we have here are a lot of fuzzy memories, and no damning evidence that Scooter Libby was involved in either a criminal activity to sabotage Joe Wilson, or to commit perjury or obstruct justice in an investigation in which the Special Prosecutor knew from the start who leaked the name to Robert Novak. The jury must be wondering why Scooter Libby was picked to be the scapegoat, not by the Bush Administration, but by the Special Prosecutor. While it is risky business to predict what a jury will do, I expect Libby to be acquitted, or at least to have a majority vote for acquittal in a hung jury.

To Matthews and many journalists covering this trial, the charges against Libby were merely a vehicle to once again claim that the war was based on lies and misrepresentations. This trial was to be their chance to further undermine the Bush Administration.

“I wanted so much for this trial to bring out the truth,” said Matthews, “and it looks like it’s not going to.” It may not have brought out the “truth” that Matthews was looking for, but it certainly made it clear that we should be very suspicious of many news stories that are stated with such certainty, but are in fact built on fuzzy memories, agenda-driven interpretations and selective reporting.

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