Libby Defense to Rest Without Testimony by Him or Cheney

By Amy Goldstein and Carol D. Leonnig
Washington Post Staff Writers
Wednesday, February 14, 2007

Attorneys for I. Lewis "Scooter" Libby said yesterday that he and Vice President Cheney, his former boss, will not testify in Libby's perjury trial, leaving the defense preparing to rest its case today after barely more than two days of testimony.

The defense's announcement in court, partway through the fifth week of the celebrated trial of the vice president's former chief of staff, represented an abrupt shift from the witness strategy that Libby's lawyers laid out in hearings and court papers during the months leading up to the trial.

The defense's central theory is that Libby suffered from a notoriously bad memory and misspoke to investigators about his role in the Bush administration's disclosure of the identity of undercover CIA officer Valerie Plame. The decision to foreshorten the case means that jurors will hear little testimony and see scant evidence to back that contention. Yesterday, John Hannah, a former deputy to Libby for national security matters, provided the sole support for the idea, testifying that "on certain things, Scooter just had an awful memory."

The decision also means that the defense will not call any witnesses to explicitly buttress a dramatic assertion by lawyer Theodore V. Wells Jr. in his opening statement to the jury: that Libby was scapegoated by his White House colleagues when the leak investigation began.

Outside legal specialists said that Libby's attorneys appear to have concluded that the risks of exposing the defendant and the vice president to cross-examination on the witness stand outweighed the benefits they could provide in establishing Libby's innocence. Cheney would have been the first sitting vice president to testify in a criminal trial in at least a century.

"You can't control how things are going to go," said Randall Eliason, a former chief prosecutor of white-collar crimes for the U.S. Attorney's Office in Washington. Eliason said that Special Counsel Patrick J. Fitzgerald could have grilled Libby about any conflicting statements he had made.

Eliason and Carl Tobias, a University of Richmond law professor, said that Libby's defense team is experienced and must be confident that it has established reasonable doubt in cross-examination of prosecution witnesses. In closing arguments, they predicted, defense lawyers may remind jurors about holes they poked in other witnesses' accounts -- and what they may portray as a lack of clear evidence that Libby deliberately lied.

"It's a pretty tepid defense that's been mounted, and I wouldn't even say mounted," Tobias said. "There was all this information to suggest the defense was going to put on more of a defense than we saw."

Libby's attorneys did not publicly explain why they decided that the two men should not testify. For the past several days, however, they had been laying groundwork for a possible change in course, filing court papers and repeatedly asking U.S. District Judge Reggie B. Walton to permit them to preserve the faulty-memory defense even if they chose not to call Libby as a witness.

Yesterday afternoon, just before the jury was excused for the day early because of an approaching winter storm, Wells told Walton that the defense team had just decided that it would "release" Cheney as a possible witness.

Wells also said that he and Libby's defense team had just recommended to Libby that he not testify on his own behalf. After conferring with his wife, also a lawyer, Libby accepted his counsel's advice, Wells said.

Walton then asked Libby whether he was certain that he wanted to forgo his right to testify. "Yes, sir," he replied in a quiet, steady voice, speaking in court for the first time since his trial began.

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