The Libby Trial Losers

By Andrew Cohen
Special to
Tuesday, March 6, 2007 12:58 PM

Historians will need an index to list all the losers emerging from the perjury and obstruction trial of I. Lewis "Scooter" Libby. They will be able to count the winners on one hand. So it goes when you look back upon a case and a trial that braided together law and politics and journalism and ethics and morals and memory into one fine, ugly mess of a knot.

The story here isn't that Libby was convicted after a drubbing by prosecutors. The story here is that the events which led to his troubles are standard operating procedure in the corridors and backrooms and Blackberries of power. Government officials have before in our history used their power and knowledge to try to destroy their political enemies. And they will do so again. Reporters before in our history have been manipulated by ambition and laziness into becoming the tribunes of this sleazy work --into becoming the instruments of the attempted first-degree reputation murder. And no doubt they will be again.

Same as it ever was. Libby got caught and convicted and in the end it wasn't terribly close or worthy of dense legal analysis. Too many solid prosecution witnesses plus too paltry a defense case almost always equals conviction. And it did so here. Several of Libby's colleagues could have -- and maybe should have -- shared his fate. But the story of how the White House tried to get back at former ambassador Joseph Wilson after he went rogue on foreign policy is now familiarly embarrassing to all those who were involved, including the Vice President of the United States. Indeed, even more than Libby, who is looking at prison time, Cheney gets my vote for the biggest loser in all of this.

Why? Before the trial, his adversaries considered him a ruthless, nasty politician who was the big-picture dark architect of the Bush Administration's most vital policies, foreign and domestic. After the trial, added as a layer upon that ugly perception, Cheney's friends and opponents alike now have to concede that he was also in this instance at least a meddling, petty bureaucrat who spent time at his undisclosed secure location worrying about how the White House would get back at Wilson, a penny-ante operator in the high-stakes game of politics over Iraq.

Think Darth Vader cutting out Luke Skywalker clips with a penknife and then whining about it to his subordinates within the Evil Empire and you get a decent mental image of how much Cheney lost as a result of this trial. And he certainly didn't gain anything back when Libby's attorneys chose not to call Cheney to the witness stand after all their pre-trial preaching about how the Vice President would testify for his friend and former subordinate. Either the stench of Libby's pending defeat was too much for Cheney, in which case it appears as though he abandoned his friend, or the stench of Cheney's involvement in this tawdry matter was too much for Libby's lawyers, in which case it appears that his friend abandoned him. Either way, it's a terrible denouement for the man labeled the most important vice president in history.

Looking for another set of losers? How about some vaunted members of the media establishment, who took their morsels about Plame from the hands of White House officials like dogs going after Milk Bones. These reporters sure were quick to out Plame or discredit Wilson -- to do the bidding of the administration. They were less quick to see or report upon the larger story -- how key White House officials were wasting their time during those crucial days in 2003 concocting political attacks upon their enemies, real and perceived. Some of the reporter-witnesses who testified in this trial once were my heroes. Now they come off as run-of-the-mill hacks who ended up believing that access to power and information was an end and not merely a means to an end. Almost makes me glad that special prosecutor Patrick Fitzgerald busted up the first amendment to get to them.

But there are winners in the Libby story. And the biggest winner of all has to be the aforementioned Fitzgerald, who refused to bite off more than he or the nation could chew and who, in the end, was able to record for posterity the essence of the story of the Plame Wilson affair. To his critics on the left, Fitzgerald didn't go far enough in handing out indictments to White House officials. To his critics on the right, he's the liberal version of Kenneth Starr. Whatever. The guy is a marvelous lawyer with a keen sense of how the law can erode political façade, even one as chip-proof as this White House had tried to construct. The genius of Fitzgerald's conduct here was that he actually underplayed his hand and then let the natural force of political and legal momentum push and pull him along to this result. Less was more.

Other winners? How about the members of the jury who finally with their verdict ended for the moment the endless spin cycle that inundated both the run-up to this case and then the trial itself? Libby's attorneys argued until they were blue in the face that their client made a simple mistake and shouldn't have been held solely accountable for all the mistakes of judgment and memory inside the White House during the period in question. No sale, said jurors with this verdict. You can make a mistake in school, or at your job, or even in your marriage. But when you are under oath and you've been prepped by your lawyers and you know that everything is on the line it is not okay to get your facts wrong.

Now, the post-trial spin will gin up again. Libby's attorneys promise an appeal and declare that their guy got a raw deal from a lame judge. But it almost doesn't matter what happens now to Libby. His trial, and the investigation which led to it, raised forever the curtain on shoddy conduct within an administration that came to power promising to avoid such conduct. That is Fitzgerald's most important achievement and it is the White House's biggest shame. It's just too bad it took so many years, so many botched news reports, and so many millions of tax-payer dollars, to discover it.

Andrew Cohen writes Bench Conference and this regular law column for He is also CBS News Chief Legal Analyst. His columns for CBS can be found online here.

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