Experts varied Friday on whether the case of I. Lewis "Scooter" Libby is likely to go to trial, Bob Egelko of the San Francisco Chronicle reported. -- A professor at UC Hastings College of Law opined that the not guilty plea and the hiring of two prominent defense attorneys "signal that a trial looks very likely," while an attorney who represented Susan McDougal in the Whitewater case predicted that Libby would eventually plead guilty in order to keep Dick Cheney from having to testify. -- If there is a trial, "Most of those interviewed said they thought Cheney could be ordered to testify, based on a U.S. Supreme Court ruling that required President Clinton to testify in Paula Jones' sexual harassment suit," Egelko reported. -- Should there be a trial, "[Special Counsel Patrick] Fitzgerald told [U.S. District Judge Reggie B.] Walton that it would take the government two weeks to present its evidence against Libby at trial," Richard Schmitt of the L.A. Times reported....
TRIAL A STEP CLOSER AFTER LIBBY PLEA
By Bob Egelko
** Scenarios include Cheney on stand, pardon by Bush **
San Francisco Chronicle
November 4, 2005
Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff, pleaded not guilty Thursday to charges that he lied to a grand jury investigating the leak of a CIA agent's identity, moving the case a step closer to a potentially historic trial that could feature Cheney and other luminaries as witnesses.
His plea could also be a prelude to a future guilty plea, or even to a pardon from President Bush.
Legal analysts, including two former Iran-Contra special prosecutors, offered varying assessments of all three possible outcomes after Libby's brief arraignment hearing in a Washington, D.C., federal courtroom.
Libby's proclamations of innocence since his indictment last week, and the addition of two prominent trial lawyers to his defense team, "signal that a trial looks very likely," said Rory Little, a professor at UC Hastings College of the Law in San Francisco and a former federal prosecutor. A guilty plea, though still possible, is clearly not imminent, he said.
San Francisco lawyer John Keker, who prosecuted Oliver North on charges of obstructing Congress' investigation into the Iran-Contra scandal, read the tea leaves similarly.
"He has said that he's innocent, and now that he's hired first-class trial lawyers, that would lead me to believe they're there to try the case," Keker said.
Some other veteran practitioners saw it differently. Houston trial lawyer David Berg, who represented Susan McDougal, a former associate of Bill and Hillary Clinton, in the Whitewater case, predicts Libby will eventually plead guilty, in part to keep Cheney from having to testify.
Libby, 55, Cheney's longtime aide and confidant, was indicted by a federal grand jury last Friday on five felony charges of perjury, obstruction of justice and making false statements to federal agents.
Libby is accused of lying both to the grand jury and federal investigators when he denied telling reporters that Valerie Plame, the wife of former Ambassador Joseph Wilson, worked for the CIA, and testified that he had learned the information from the reporters. The three reporters he named -- Tim Russert of NBC, Judith Miller of the New York Times and Matthew Cooper of Time magazine -- have all contradicted his account.
Valerie Plame's name and affiliation were leaked to the media after her husband published a column in the New York Times in July 2003 saying he had found no evidence, on a CIA-sponsored trip to Africa, to support Bush administration claims that Saddam Hussein had tried to buy uranium in Niger. According to the indictment, several government officials -- including Cheney -- told Libby about Valerie Plame's CIA connection in June 2003.
The charges are punishable by 30 years in prison, but a more likely sentence under federal guidelines is two to three years if Libby is convicted on all counts, Little said. A guilty plea could reduce the sentence.
U.S. District Judge Reggie Walton scheduled a hearing for Feb. 3 on the status of the case to give Libby's new attorneys time to get security clearances and review classified documents that might be used as evidence.
One of the new attorneys, Ted Wells, successfully defended former Agriculture Secretary Michel Espy and former Labor Secretary Raymond Donovan on corruption charges. The other addition, William Jeffress, represented former Louisiana Gov. Edwin Edwards and also helped represent former President Richard Nixon in the long-running litigation over ownership of White House tapes, said Little.
Keker called Jeffress "the perfect lawyer for Libby . . . very connected, a great trial lawyer."
But Berg, author of a book on trial practice, said some cases can't be won even by the best lawyers.
"I don't think Libby has a realistic chance of acquittal," said the Houston lawyer, who has tried several perjury cases. He said the defense that was floated publicly last week by Libby's longtime attorney, Joseph Tate -- that any misstatements were due to memory lapses or confusion -- was flimsy and easily contradicted by the reporters Libby spoke to.
San Francisco lawyer James Brosnahan, a former Iran-Contra special prosecutor, said disclosing the defense so early in the case was a tactical mistake.
"When you're standing in front of 75 television cameras, you've got to be able to hold your fire . . . and not put the defense out there, because by the time it gets to trial, it'll be completely trashed," Brosnahan said. "
Still, said Brosnahan and other experts, a perjury case is hard to prosecute, because witnesses to unrecorded conversations often disagree on the words that were spoken, their meaning and their intent, complicating the prosecutor's task of proving an intentional falsehood.
Cheney could be called as a witness to verify the prosecution's claim -- reflected in notes taken by Libby, according to published reports -- that the vice president was among Libby's early sources of information about Valerie Plame and the CIA.
Most of those interviewed said they thought Cheney could be ordered to testify, based on a U.S. Supreme Court ruling that required President Clinton to testify in Paula Jones' sexual harassment suit. The possibility of a presidential pardon has already been raised by Democratic leaders, who urged President Bush to promise not to pardon Libby if he is convicted. Bush has not responded.
LIBBY PLEADS NOT GUILTY TO LYING IN LEAK CASE
By Richard B. Schmitt
** Libby Pleads Not Guilty to Lying in Leak Case **
Los Angeles Times
November 4, 2005
WASHINGTON -- Six days after being indicted, former White House aide I. Lewis "Scooter" Libby pleaded not guilty Thursday to charges that he repeatedly lied to investigators and to a federal grand jury in the CIA leak case.
Libby formally entered his plea during a 10-minute arraignment, accompanied by a new team of defense lawyers and his wife. On crutches because of a foot injury, he hobbled to the lectern and spoke to U.S. District Judge Reggie B. Walton in a clear but quiet voice.
"With respect, your honor, I plead not guilty," said Libby, who resigned last week as chief of staff to Vice President Dick Cheney and assistant to President Bush.
Libby waived his right to have the 22-page indictment read in open court. Later, he was fingerprinted and photographed and released on his own recognizance.
The hearing was Libby's first court appearance since he was indicted. The case has cast a shadow over the Bush administration and fueled debate over the intelligence it used to justify the war in Iraq.
Libby's defense team includes two prominent criminal lawyers, one of whom raised the possibility of "protracted litigation." Prosecutors indicated that the volumes of classified information they had unearthed in their investigation could mean that at least some of the proceedings would be held out of public view. Walton scheduled a Feb. 3 status conference with attorneys in the case. He did not set a trial date.
After the arraignment, one of Libby's lawyers, Theodore V. Wells Jr., said: "He has declared that he intends to fight the charges in the indictment . . . and he wants a jury trial."
Wells declined to respond to questions, saying he would not try the case in the press. "Mr. Libby intends to clear his good name through the judicial process," he said.
Libby, 55, faces charges of perjury, making false statements to federal agents and obstruction of justice. He could be sentenced to as much as 30 years in prison if convicted of all five charges.
The indictment followed Special Prosecutor Patrick J. Fitzgerald's 22-month investigation into who leaked covert CIA officer Valerie Plame's identity to the media in the summer of 2003.
Plame is married to Joseph C. Wilson IV, a former ambassador who had accused the administration in a July 6, 2003, newspaper op-ed article of twisting prewar intelligence on Iraq. Eight days later, syndicated columnist Robert Novak disclosed the identity of Wilson's wife.
Fitzgerald has said his investigation is not complete; White House political advisor and Deputy Chief of Staff Karl Rove has said through his lawyer that he may still be charged.
Fitzgerald told Walton that it would take the government two weeks to present its evidence against Libby at trial.
Prosecutors are required to give the accused any evidence that could be exculpatory. Fitzgerald said at the hearing that his office would begin that process starting next week, but cautioned that it would be slowed because of the amount of classified information.
He added that defense lawyers would also have to obtain security clearances to see some of the information.
Libby's lawyers indicated they were in no hurry to see the case go to trial.
William Jeffress Jr., one of the lawyers, told Walton there might be "protracted litigation" about access to classified information, as well as 1st Amendment issues. He did not elaborate.
Daniel Richman, a professor at Fordham Law School in New York and a former federal prosecutor, said that in cases involving classified information, it was a "classic defense tactic" to attack the government for withholding documents from the defense.
Some observers speculated that the defense might assert that Plame's CIA affiliation was widely known before the leak, and that revealing her identity caused no damage. Fitzgerald, on the other hand, would likely try to keep the case narrowly focused on whether Libby told the truth to investigators.
"Fitzgerald is going to present this as a rather simple case that does not have national security overtones," Richman said. "The Libby strategy will be to focus on the complexity of all of this and how these charges implicate a far broader range of facts."
Legal experts said the defense also seemed to be foreshadowing a fight over the testimony of reporters who were expected to be the central witnesses in the case, and over access to their notes and other information. They also said that Libby's lawyers might be preparing to argue that the prosecution was in effect an attempt to criminalize constitutionally protected speech.
Libby's alleged crimes are rooted in what he told FBI agents and the grand jury about conversations he had with three journalists in the days before Plame's identity was publicly revealed.
The indictment said that Libby had learned about Plame's CIA affiliation from sources in the government, including Cheney. But when he talked to investigators, Libby said that he had learned Plame's identity from NBC's Tim Russert, according to the indictment.
Libby is also charged with lying about the circumstances of conversations related to Plame that he had with two other journalists, Matthew Cooper of Time magazine and Judith Miller of the New York Times.
Libby's lawyers previously signaled that they intended to argue that inconsistencies in his testimony were the result of a hectic work schedule and that, at most, he was guilty of memory lapses. Some legal experts said the journalists' credibility could become a major issue.
"We are going to have an extended swearing contest between journalists and Mr. Libby about who was telling the truth," predicted Jane Kirtley, a media law expert at the University of Minnesota.
Other experts said the defense could attempt to subpoena information about the journalists' reputations for fairness and accuracy, such as information about complaints from readers and editors, as a way of testing their credibility as witnesses in court.
Wells and Jeffress are new additions to Libby's defense team.
Wells once served as national treasurer for Democratic Sen. Bill Bradley's presidential campaign. He has won acquittals for such figures as former Agriculture Secretary Mike Espy and former Labor Secretary Raymond J. Donovan.
Wells represented former Sen. Robert Torricelli (D-N.J.) during an investigation of potential campaign finance irregularities that was eventually dropped. More recently, he has been a lead counsel defending the tobacco industry in a racketeering case brought by the Justice Department.
Jeffress, who once won a Supreme Court ruling for former President Nixon involving public access to the Watergate tapes, is a partner in the Washington office of the Houston-based law firm of Baker Botts, where Bush family friend and former Secretary of State James A. Baker III is a senior partner.
Jeffress also represented Mary Matalin, a former advisor to Cheney, when she testified before the grand jury in the leak case.