By Byron York, White House correspondent for National Review (THE WASHINGTON POST, 17/02/07):
At the end of each witness’s testimony in the perjury and obstruction trial of Lewis “Scooter” Libby, after prosecutors and defense attorneys examined and cross-examined, U.S. District Judge Reggie B. Walton asked jurors to write down any questions they had. Walton would then look through the papers, decide which questions were appropriate and pose them to the witness.
Now, as the case heads to the jury, those queries are our best hints about what jurors are thinking.
But last week there was a moment when we got a hint not from a question that Walton asked, but from one he refused to ask. After the testimony of star prosecution witness Tim Russert, Walton scanned the jurors’ queries and announced, “There is going to be one question I’m not going to ask. I’ve concluded that that question is not appropriate and therefore you should not speculate as to what the response would have been.”
What was he talking about? A moment later, Walton told the jurors: “What Mrs. Wilson’s status was at the CIA, whether it was covert or not covert, is not something that you’re going to hear any evidence presented to you on in this trial.”
“Whether she was, or whether she was not, covert is not relevant to the issues you have to decide in this case,” he said.
It is The Thing That Cannot Be Spoken at the Libby trial.
From the first day, Walton has said that jurors will not be allowed to know, or even ask, about the status — covert, classified or otherwise — of Valerie Plame Wilson, the woman at the heart of the CIA leak case. “You must not consider these matters in your deliberations or speculate or guess about them,” he told jurors in his opening instructions.
A few days later, on Jan. 29, Walton told everyone in the courtroom that the jurors are not the only ones in the dark about Mrs. Wilson’s status. “I don’t know, based on what has been presented to me in this case, what her status was,” Walton said. Two days later, he added, “I to this day don’t know what her actual status was.”
Walton’s reasoning is this: The trial is about whether Libby lied to the grand jury in the CIA leak investigation. Prosecutor Patrick Fitzgerald never charged anyone with leaking the identity of a covert or classified agent. Libby isn’t on trial for that, so jurors — and judge — don’t need to know.
The problem is, the entire case stems from accusations that the Bush White House illegally leaked Mrs. Wilson’s identity in an effort to get back at her husband, former ambassador Joseph Wilson, for his high-profile criticism of the administration’s case for war in Iraq. That’s why the CIA leak investigation began, and it’s why Libby appeared before a grand jury, leading to the perjury charges against him. It’s what the CIA leak case is about. Yet Walton has told jurors to put it out of their minds.
However well-intentioned, the prohibition isn’t working; the question of Mrs. Wilson’s status came up in court virtually every day. Take, for example, the time prosecutors played tapes of all eight hours of Libby’s grand jury testimony.
And what was Libby asked about?
“Did you have any sense that if you revealed the person’s identity out at the CIA you may be compromising the identity of a covert person?” Fitzgerald was recorded as asking Libby.
“No, sir,” Libby responded. “I mean, my, my understanding is that most of the people at the CIA are not covert . . .”
“You didn’t consider that there might be a risk that a person working at the CIA might be overt to other CIA employees and even sometimes to the government, but may be operating undercover — or might otherwise be a covert person?”
“I had no sense that it was something classified.”
The jury heard it all, aided by their own copies of the transcript and exhibits. Of course, if they thought about Mrs. Wilson’s status, they would have been violating Judge Walton’s order.
Then there was the argument Fitzgerald had with defense lawyer Ted Wells over Fitzgerald’s theory that Libby lied because he was afraid for his job after President Bush announced that anyone who leaked classified information about a CIA agent would be fired.
Wait a minute, said Wells. “The jury has been instructed that the issue of whether it was classified or whether she was covert will not be presented in this case.”
“I’m not going to tell the jury the information was classified,” Fitzgerald responded. “I will tell the jury that there was an investigation into whether the law was violated.”
Of course, we all knew — and the jury knew too, since it was discussed in Libby’s grand jury testimony — that the law to which Fitzgerald referred was the one barring disclosure of a covert agent’s identity.
Outside the courtroom, Fitzgerald has said that Mrs. Wilson’s status was in fact classified. The Libby indictment says that, too. But the judge has not allowed the jury to see the indictment, either.
The result is that jurors have heard constant suggestions that some sort of crime, committed by the administration and perhaps by Libby himself, lies at the bottom of the case. An air of accusation hangs over the courtroom.
But the accusation can’t be discussed.
Maybe in the end, jurors will be able to make sense of it all. But it’s more likely that even after the trial ends, they’ll still have one question they want answered.