Libby Speaks on Tape, but May Not in Court
WASHINGTON, Feb. 6 — The jurors deciding the perjury case against I. Lewis Libby Jr. listened to his voice on audiotape for hours on Tuesday as his lawyers quietly explored a surprise strategy, keeping him off the witness stand, that would ensure that the jurors never hear his voice in person.
The audiotapes played in the courtroom were of Mr. Libby’s two grand jury appearances in March 2004, in which he repeatedly testified under oath that he had no recollection of several conversations about Valerie Wilson, a Central Intelligence Agency operative. His denials were in sharp contrast to the testimony over the last two weeks of reporters and government officials who were colleagues of Mr. Libby, the former chief of staff to Vice President Dick Cheney.
Out of the jury’s presence and beyond the courtroom, Mr. Libby’s lawyers appeared to be engaging in some gamesmanship over the possibility of Mr. Libby’s not testifying in his own defense. They had previously suggested that he would testify.
Theodore V. Wells Jr., Mr. Libby’s chief lawyer, filed a motion with the court on Monday evening asking about the consequences of keeping his client off the stand. Mr. Wells argued that, even if his client decided not to testify, he should be able to argue that any misstatements Mr. Libby made to the grand jury and investigators about Ms. Wilson were caused by confusion due to Mr. Libby’s pressing schedule of important issues.
Judge Reggie B. Walton had asserted earlier in the trial that Mr. Libby’s “faulty memory” defense would require that he take the stand to testify about his distractions.
While testifying could be perilous for Mr. Libby, a decision not to testify is almost by definition a risky strategy for any defendant in a white-collar criminal case. Lawyers assume the jury, especially in a perjury case, wants to hear a personal and plausible explanation directly from the defendant about the statements that prosecutors have charged are false.
But Mr. Wells has had success with that strategy. He won much-lauded acquittals for Mike Espy, agriculture secretary for President Bill Clinton, and Raymond J. Donovan, labor secretary for President Ronald Reagan, without putting either man on the stand.
Mr. Wells would not comment on the possibility that Mr. Libby might not testify. Nor would Patrick J. Fitzgerald, the chief prosecutor, who has yet to file a response.
The four hours of audiotape played Tuesday in Federal District Court were intended by the prosecutors to underscore how much Mr. Libby’s sworn testimony varied from the accounts of other trial witnesses. Mr. Fitzgerald was heard questioning Mr. Libby closely before the grand jury about a lunch he had on July 7, 2003, with Ari Fleischer, who was departing that week as President Bush’s press secretary.
Mr. Fleischer already told the jury last week that, at the luncheon in the White House mess, Mr. Libby made a point of telling him that Valerie Wilson, also known as Valerie Plame, worked at the C.I.A. and that the information was “hush-hush and on the q.t.”
But Tuesday, the jury heard Mr. Fitzgerald patiently draw from Mr. Libby a different story, one in which he never discussed Ms. Wilson with Mr. Fleischer. Mr. Libby was heard on the tape telling Mr. Fitzgerald that it did not make sense that he would have mentioned Ms. Wilson because he remembered being surprised when he learned that fact in a conversation three days later with Tim Russert, the Washington bureau chief of NBC News.
It was among many references Mr. Libby made before the grand jury to Mr. Russert and their conversation on July 10 or 11, 2003. One of the pillars of Mr. Libby’s defense is that he did not discuss Ms. Wilson’s identity with the witnesses the prosecution has presented because he learned about her from Mr. Russert.
But Mr. Russert, who is likely to testify Wednesday, has said his conversation with Mr. Libby never included any mention of Ms. Wilson.
Ms. Wilson’s name was first disclosed in a column by Robert D. Novak on July 14, 2003, days after The New York Times published an Op-Ed article by her husband, Joseph C. Wilson IV. Mr. Wilson, a former ambassador, wrote that he went on an intelligence mission to Africa in 2002 and that the Bush White House had willfully distorted his findings — that Iraq had not tried to acquire uranium in Niger — to bolster the case for invading Iraq.
In his questioning of Mr. Libby, Mr. Fitzgerald’s voice turned suddenly abrupt when he asked, “Isn’t it a fact that you told Ari Fleischer the information about Ms. Wilson was hush-hush and on the q.t.?”
Mr. Libby’s voice seemed to have lost much of its strength as he replied, “I don’t recall.”
It may be that kind of cross-examination from Mr. Fitzgerald that the defense hopes to avoid if it keeps Mr. Libby off the stand. In addition to Mr. Fleischer’s conflicting testimony, the jury has heard that Mr. Libby was told about Ms. Wilson by Mr. Cheney’s press spokesman, Cathie Martin, and the under secretary of state at the time, Marc Grossman. The jury has also heard testimony that Mr. Libby discussed Ms. Wilson with two separate C.I.A. officials.
The audiotapes also provided more detail about Mr. Libby’s July 8, 2003, meeting with Judith Miller, then a reporter for The New York Times. Mr. Libby told the grand jury that his meeting with Ms. Miller was approved directly by the vice president. Mr. Libby said that in order to convince Ms. Miller that Mr. Wilson’s article in The Times was filled with inaccuracies, Mr. Cheney first went to President Bush directly to declassify a National Intelligence Estimate. Mr. Libby said that he used the intelligence estimate in the Miller interview to counter Mr. Wilson’s claims that there was no Iraqi effort to obtain uranium from Niger.
“The vice president instructed me to go and talk to Judith Miller and lay this out for her,” Mr. Libby told the grand jury. He said he did not discuss Ms. Wilson in the interview. But Ms. Miller, who went to jail for 85 days before talking to prosecutors about her interviews with Mr. Libby, testified last week that he spoke to her in detail about Ms. Wilson at the July 8 breakfast meeting.
He lamented that Ms. Miller did not write anything from the interview. At the time, Ms. Miller’s editors had tried to prevent her from reporting on this subject because of criticisms of her coverage about Iraq and unconventional weapons.
Judge Walton, early in the day, denied a motion by The Times to quash a subpoena for the testimony of David Sanger, its chief Washington correspondent. Mr. Sanger interviewed Mr. Libby on July 2, 2003, about Iraq’s nuclear intentions and has said there was no discussion of the Wilsons. The defense has contended that Mr. Sanger’s expected testimony will show that Mr. Libby was not peddling a story about the Wilsons.