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"Scooter" Libby Trial Begins
Jury Selection Starts for Bush Official Accused of Perjury

Jeralyn Merritt
Legal Analyst
Tuesday, January 16, 2007 2:00 PM

Criminal defense attorney Jeralyn Merritt was online Tuesday, Jan. 16, at 2 p.m. ET to discuss the beginning of the I. Lewis "Scooter" Libby trial, the defense team's potential strategy and who key witnesses likely will be.

At Libby Trial, Power Players Face Uncomfortable Spotlight (Post, Jan. 15)

Merritt was one of the principal defense attorneys in the Timothy McVeigh trail and has been a frequent legal analyst for MSNBC, Fox News, CNN, NBC News, Court TV and CNBC since 1996.

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Jeralyn Merritt: Hi everyone. Jeralyn Merritt here, ready to answer your questions about the trial of I. Lewis "Scooter" Libby. It will be a fascinating one, involving those at the highest levels of our government and prominent members of the media.
Let's get started.

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Washington: Just curious -- where is the trial taking place? Is this considered a federal trial?

Jeralyn Merritt: The trial is taking place at the Prettyman courthouse in the Disctrict of Columbia. Yes, it is a federal trial. The charges are felony violations of the United States Code. The trial is expected to last four to six weeks. Jury selection should occupy today through Thursday. There will be no trial on Fridays.

Opening arguments are scheduled to begin Monday, January 22.

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Washington: I can think of scores of people who are ideologically so anti-President Bush it is frightening, and who have the means (i.e. no job, student, or able to take a leave) who would covet a chance to sit on this jury with one intention. How do you really separate those from the impartial jury. I am reasonably certain I could lie my way convicingly onto a jury -- how do we know people are not licking their chops and faking it? How many OJ juror's were really that impartial and objective before the trial?

Jeralyn Merritt: There is always the chance a stealth juror will lie their way onto a high-profile trial, either to get their 15 minutes of fame or to capitalize on the experience by writing a book afterwards. There were serious intimations of this occurring during the Scott Peterson and Michael Jackson trials.
Lawyers use trial consultants and the process known as "voir dire", questioning of jurors, to try and weed them out. Sometimes it works, sometimes it doesn't.

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Philadelphia: Obviously Karl Rove did not get indicted for his role in the Plame leak investigation. Many people have speculated that he provided relevant information to Fitzgerald against Libby and, in turn, was not indicted. Do you think this is plausible and, if so, any guesses on what he could have said?

Jeralyn Merritt: Karl Rove's lawyer, Robert Luskin, has publicly and adamantly denied that Karl Rove had any kind of deal to provide information in exchange for not being charged in the case. However, he has also said that Rove has fully cooperated with the investigation. Rove testified before the grand jury on four occasions, after which, Fitzgerald made the decision not to charge Rove with a crime.
If there was some sort of deal, it would have to be disclosed to Libby's lawyers and I think it would come out at trial, as Karl Rove is expected to be a witness. It remains to be seen whether Rove's testimony is harmful to Libby.
I would guess Rove's information would relate to his conversations with reporters, Libby and others in the White House about Joseph Wilson, Valerie Wilson and any efforts -- or lack of efforts -- to use his wife's employment with the CIA to discredit him and his public statements about weapons of mass destruction and the Administration's claims regarding them during events leading up to the Iraq War.

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Buffalo, N.Y.: Do you think that President Bush and VP Cheney could be in trouble if it's shown that they started the Iraq war based on knowingly false information and intel? Will Scooter roll over on his pals if the heat gets turned up to high?

Jeralyn Merritt: President Bush and Vice President Cheney were both interviewed by federal prosecutors during the course of this investigation. Their reasons for going to war would not lead to criminal charges in this case. However, if either lied during their interviews and knowingly answered questions falsely, they could face legal liability.
Yes, Libby could "roll over" on his pals. He could do so at any time, with the agreement of the Government, even after his trial and sentencing, if he is convicted. The Government can move for a sentence reduction for post-trial cooperation up to one year after sentence is imposed.

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San Bruno, Calif.: How will the prosecutor show that Libby intended to lie to the grand jury when in fact he personally did not disclose the name of Valerie Plame?

Jeralyn Merritt: Libby is not charged with disclosing the name of Valerie Plame Wilson. He is charged with lying about where he learned of her employment with the CIA and to whom he disclosed it. He told federal investigators he first learned of her name from NBC reporter Tim Russert during a conversation on July 10, 2003. Russert adamantly denies this and says he didn't know her name until Robert Novak's column was published, the week following his conversation with Libby.
The Government charges that Libby first learned of Valerie Plame Wilson from Vice President Dick Cheney in June, 2003. Also, the Government charges that Libby discussed "Joe Wilson" and his wife "Valerie Wilson," with his C.I.A. briefer in the context of Wilson's trip to Niger to check on a matter related to weapons of mass destruction -- as well as with then New York Times reporter Judith Miller.
Libby is also charged with lying to the grand jury on both March 5, 2004 and March 24, 200 about his conversations with reporters, including Matthew Cooper. Finally, he is charged with obstruction of justice.
Libby maintains he forgot he learned the information from Vice President Cheney because he was preoccupied with other serious national issues.

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Washington: If Judith Miller's piece wasn't printed, how did the authorities know anyone talked to her or what they said?

Jeralyn Merritt: Judith Miller testified to the grand jury. Her version about her conversations with Mr. Libby differ from his. The Government has notes that she took of her conversations. The jury will decide whether to believe Mr. Libby or Ms. Miller's versions of the conversations.

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Vienna, Va.: Would it not be a fair summation of this case to say that Libby is being accused of lying to cover up a non-crime? Had he done -- as Richard Armitage apparently did -- simply say "yes, I mentioned her, I didn't know she was under cover" this whole affair would have been over a couple years ago.

Jeralyn Merritt: Yes, Libby is being charged with a cover-up, not with the crime of disclosing classfied information. If he had accurately disclosed his converations with reporters and government officials to prosecutors and investigators, he wouldn't be in this mess. Now that he is, his defense is that he forgot and didn't knowingly lie on any issue material to the investigation.

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Seattle: Will there be any cameras in the courtroom during this trial shooting live or taped footage to be used on news shows?

Jeralyn Merritt: No, federal rules preclude cameras in the courtroom. There will be no taped trial footage on tv.
But, the court is allowing wi-fi in an auxillary courtroom so you can get a blow-by-blow.
During the day, newspapers and tv will update with live reports from those in the courtroom. A few sketch artists are being allowed in the courtroom.

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Lost Creek, W.Va.: Thanks for your time in answering questions here. With the legitimate need for secrecy due to national security and other reasons, how likely is it that sealed indictments or testimony exists? If the public would not have a specific need to know about those charges, is it possible others have been charged or indicted and the public never would be aware?

Jeralyn Merritt: It is possible there is one or more sealed indictments in the case. How long that would stay secret is anyone's guess.
However, if someone agreed to plead guilty in exchange for testifying against Mr. Libby, that would have to be made known to Libby's lawyers. They would be able to disclose the fact that a witness got a deal during their cross-examination of the witness.
I am still wondering who got immunity from prosecution in exchange for their testimony against Mr. Libby. There has been a dearth of reporting on this subject.

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Fairfax Station: To convict on Perjury charges, is it establishing a lie or untruth was told, or must the prosecution prove that Libby intentionally and knowingly did so? Given the law of unintended consequences, I can also see the trial ending up with the ethics of "journalism" perhaps on trial. Your take? Thanks

Jeralyn Merritt: To convict on perjury, the Government must prove Mr. Libby knowingly made a false and material statement to the grand jury.
The parties will be battling mightily over the issue of whether Mr. Libby's statements, if false, were "material" to the investigation.

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Ava, Ill.: There has been much speculation that this trial will shed some light on the VP's efforts to massage the intelligence into a form that would support his drive to war. Is this likely? Or do you think this is just wishful thinking?

Jeralyn Merritt: I do think it will shed light on whether the Administration, particularly Vice-President Cheney, tried to manipulate the pre-war intelligence -- focusing on attempts to discredit Joseph Wilson.
One key here I believe will be the July 12th plane ride to Norfolk undertaken by Cheney, Libby and Cathie Martin. It was on this trip that witnesses will testify Cheney and others discussed discrediting Joseph Wilson.

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Oakland, Calif.: You mentioned that any deal with Karl Rove would have to be disclosed to Libby and his attorneys. I believe recent filings have indicated that there will be "at least one immunized witness." Do we know who any such witnesses are yet?

Jeralyn Merritt: There is no confirmation, but I believe one likely candidate who has been mentioned is former Cheney press aide Cathie Martin. Other possibilities from my vantage point include Marc Grossman, Ari Fleischer and John Hannah.
Of course, it may be that all of them testified without asking for immunity.

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Gaithersburg, Md.: One question that I have been confused all this time -- why did Libby try so hard and risk jail to cover up the leak if he did not directly provide the leak to Bob Novak? Thanks.

Jeralyn Merritt: One line of reasoning is any cover-up on Mr. Libby's part was to protect his boss, Vice President Dick Cheney -- taking one for the team, so to speak. Of course, Mr. Libby maintains there was no cover-up and his faulty memory is the culprit.

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Springfield, Mass.: I've heard that Scooter Libby has a fantastic memory for details -- do you think any witnesses will be called to corroborate this, or perhaps memory experts to disqualify his "I was very busy and forgot" defense?

Jeralyn Merritt: Mr. Libby tried hard to have a memory expert testify on his behalf. The Judge denied the request.

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Rockville, Md.: This seems like an example of someone going on a "bear hunt" and having grass soup for supper, but it may cost Mr. Libby in legal fees. Who would ever want to work for the President after this or the Clinton trials? I suspect it would have to either be a rich person or someone with ties to money that promise to pay the tab.

Jeralyn Merritt: In Mr. Libby's case, his supporters and friends established a defense fund which reportedly has raised over $3 million so far. The Clintons also raised money from supporters and wrote books earning them millions to pay off their legal fees.

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Annandale, Va.: Good Afternoon. A quick question on defense lawyers ... as Timothy McVeigh's attorney, you were tasked with attempting to free one of our nation's worst mass-murderers. If Scooter Libby's lawyer found out that Libby was indeed guilty as charged, should he continue to represent him? As a side note, did you believe McVeigh to be innocent, were you just doing your job, or does guilt/innocence not even matter, as long as the hired-for result is achieved? Many thanks!

Jeralyn Merritt: First of all, lawyers do not decide whether clients are guilty, that is determined by the jury.
Lawyers do not judge their clients. The test at trial is whether the government can prove each and every element of a charged crime beyond a reasonable doubt. Crimes consist of acts accompanied by a specified mental state.
Guilt is a lot more complicated than whether someone committed a particular act.

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Boston: As a defense lawyer, would you say that men are more likely than women to be "loyal" and lie to protect associates or superiors? If so, do you think this results from social expectations toward men like courage and chivalry? Thanks.

Jeralyn Merritt: I certainly don't believe that. I don't think you can equate loyalty and propensity to lie or cover-up by gender.

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Washington: I saw that Fitzpatrick was asking to have background checks conducted for all the prospective jurors and looking for those with "police records," according to the Associated Press. The Constitution disallows felons from voting so they usually aren't included on the voter rolls where jurors are drawn, but is it impermissible to serve on a federal jury if a person has been arrested for a misdemeanor at some point in life? Seems a bit biased to believe that anyone who has ever been arrested is unfit for jury duty.

Jeralyn Merritt: Being arrested for a misdemeanor does not disqualify a person for jury service. A felony conviction does.
The reason for probing these matters is to test the person's attitudes and beliefs towards the criminal justice system. Do they believe they were treated fairly, would they use anything from that experience against one side or the other.

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New York: One of Libby's lawyers (Jeffress, I believe) also worked with Mary Matalin regarding the Libby investigation. I've wondered if a lawyer in that position can use information learned in defending one client for the defense of a second in the same case?

Jeralyn Merritt: I don't know whether Jeffress also represented Mary Matalin, who during some of the time period relevant to the investigation, worked for Vice President Dick Cheney and was called to testify before the grand jury. She is also listed as a potential trial witness. She is a strong supporter of Mr. Libby.
It would be conflict for a lawyer to disclose information gathered in confidence for one client on behalf of another. However, a client can waive his or her right to the attorney-client privilege. Also, the federal rules permit clients to waive their right to conflict-free representation upon motion to the court. It may be that Matalin has agreed to allow Jeffress to use information told to him during his representation of her -- particularly if she believes that information will assist Mr. Libby.

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Lost Creek, W.Va.: Has it been asked here yet if VP Cheney will be in the courtroom or via videotape? If taped, how is cross-examination handled? Could the grant of immunity for testimony be granted in other ways? Can the VP claim an executive privilege or national security privilege to avoid testimony selectively?

Jeralyn Merritt: It has been asked, but we don't know the answer. The defense must be allowed the opportunity to cross-examine every witness, including Vice President Cheney. If I were a lawyer on either side, I would want his testimony live in the courtroom, so the jury could fully assess his body language as well as his answers.

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Jeralyn Merritt: Thanks, everyone for participating. This is only day one. Once the opening arguments and testimony get going, I expect this to be a riveting trial. Stay tuned!

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