The Defense Rests, and Not a Minute Too Soon

By Dana Milbank
Wednesday, February 21, 2007

For a brief moment yesterday, Scooter Libby was not a former White House aide on trial for perjury. He was an orphan in need of a loving home.

"He's been under my protection for the last month; now I'm entrusting him to you," defense lawyer Ted Wells told the puzzled jurors.

His voice breaking, the $700-an-hour lawyer pleaded: "Give him back! Give him back to me!"

Wells sobbed loudly and went back to his chair, where he sat staring at the floor and emitting the occasional sniffle.

Exactly what Wells was trying to achieve with this outburst -- if he intended it at all -- was a mystery. And that made it an appropriate coda for the defense's closing argument in the CIA leak case yesterday. Wells, who has successfully defended the likes of Robert Torricelli and Mike Espy, may yet win an acquittal from the jury, which will start deliberations today. But it won't be because of the cohesion of his closing arguments. Libby was alternately portrayed as a man who told the truth, a man who inadvertently misspoke, and the victim of conspiracies involving everybody from President Bush to Tim Russert.

Wells's shots rang out from every direction.

On his client: "He's not stupid, man."

On the prosecutors: "Think about the madness!"

On his opening argument: "Maybe I was drunk or something."

On prosecution witness Judith Miller: "Ms. Miller's gone. Boom!"

On Bush's chief strategist: "Karl Rove lied!"

On Bush's press secretary: "Gimme a break.' "

What he lacked in focus, Wells made up for in folksiness. He used words such as "skullduggery" and said White House intelligence briefings "make your toes curl." He credited his partner with "a Perry Mason moment in the courtroom" and informed the jury: "I'm gonna give you a homework assignment."

Wells returned repeatedly to a note written by Vice President Cheney expressing concern that Libby was being sacrificed to protect others. "Ted Wells didn't write that!" he exclaimed. Making a crawling motion, he elaborated: "I didn't crawl into the White House, get into a time machine and go back and forge the vice president's handwriting."

At times, Wells asserted that his client told the truth. "I represent an innocent person," he told the jury. "He didn't leak to anybody!" At other times, he portrayed Libby as benignly befuddled. "No question he's gotten some things wrong in the grand jury, no question about it," he granted. "It may turn out that Mr. Libby is totally confused." Or maybe he was tricked by prosecutors, who were "beatin' on him in the grand jury." Reasoned Wells: "Libby should not be penalized for having a different memory system from the investigators."

Of course, one man's "different memory system" is another man's perjury. And that's why Wells had a series of slides to accompany his argument with titles that read like political attack ads: "Serious questions have been raised about Russert's credibility. . . . No 'Smoking Gun' Documents. . . . Memory problems were common in this trial."

Some of the memory problems, as it happens, were Wells's. Just minutes into his argument yesterday, he confused Libby's grand jury testimony with his answers to the FBI; he quickly corrected himself. Earlier in the trial, Wells twice confused Steve Hadley, now Bush's national security adviser, with former CIA spokesman Bill Harlow. At another point, he absentmindedly read to the jurors from an exhibit of a newspaper article, neglecting to stop even as he pronounced "Copyright 2004, the New York Times." He resumed reading the article from the beginning before observing: "I read that already."

After modest attendance throughout the Libby trial, yesterday's closing arguments were as packed as a JetBlue terminal; even the "overflow room" was overflowing with lawyers and journalists sitting on the floor. Peter Zeidenberg, leading off the closing arguments for the prosecution, delivered two hours of matter-of-fact chronology, detailing how Libby leaked the identity of a covert CIA operative and then said otherwise to the FBI and a grand jury.

Zeidenberg's low-key delivery only made Wells seem more flamboyant. Tall and mustachioed, Wells paced in front of the jurors, a vein in his neck protruding as he recited, indignantly, the various wrongs done his client.

"They were hanging him out to be a public scapegoat!" Wells said of Libby's colleagues in the White House. "Andy Card" -- Bush's chief of staff -- "blew him off!" Wells also held Cheney responsible: "The vice president of the United States had directed him to talk with Judith Miller." Nor did the defense stop there. "And President Bush was behind it, too," Wells argued.

Wells portrayed prosecution witness Russert, the NBC News Washington bureau chief, as the type of man who forgets where he parked his car. "Mr. Russert has memory problems," the lawyer told the jurors during a lengthy assault on Russert's gray matter.

The worst treatment, naturally, was reserved for the prosecutors, who were at least twice accused of "madness." Said Wells: "It's outrageous! Just outrageous! They haven't given you anything."

Wells had so thoroughly skewered his opponents that he lost track of time. Racing to finish before his allotted time expired, he skipped through slides with remarks such as "I got seven minutes here" and "Next slide!" and "Move!"

"Where am I on time?" he asked a colleague.

"You're over," came the answer.

"Yeah," Wells said, "but by how much?"

It was late in the afternoon when Wells finally finished the last of his slide show. He was practically breathless as he made his final tug at the jurors' heartstrings. "Give him a fair shake," he pleaded. "This is a man with a wife, two children." In the front row, Libby's wife, Harriet Grant, began to cry; after Wells uttered his closing sob, she gave a kiss on the cheek to Wells's mother, sitting in a wheelchair.

But Wells, overcome, was not so pleased. He returned to his chair, where he sat, staring at the floor, for 10 minutes. His colleagues kept their distance. Libby walked over to give his thanks, but the spent Wells, dispatching his client with a brief word, resumed his study of the courtroom floor.

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