Published January 17, 2007
WASHINGTON – The first day of the trial for former White House adviser I. Lewis "Scooter" Libby was characterized by discussion about the intense media scrutiny the case has received so far and questions over whether potential jurors would be swayed by the attention.
Libby's lawyers expressed concern over potential jury bias creeping into the case because of the amount of news coverage — not all of which was accurate, they said.
Libby faces perjury and obstruction charges for allegedly lying to investigators about his conversations with reporters on intelligence ahead of the Iraq war, the administration's case to prosecute it and specifically his discussions regarding former Amb. Joseph Wilson, Wilson's wife, Valerie Plame, Plame's covert status within the CIA and how that status ended up in a 2003 opinion column after Wilson took aim at administration policy on the justification for the war.
Potential jurors were quizzed individually by lawyers from which the three were dismissed. One was a freelance photographer who said she was concerned about losing wages during the trial. A Washington-based financial analyst told the judge he was an avid news reader and believed the White House sought to discredit Wilson and wasn't sure he could fairly weigh Cheney's testimony.
Another juror who was dismissed told the court: "There is nothing they can say or do that would make me think anything positive" about the administration.
The trial judge, U.S. District Judge Reggie Walton, on Tuesday began working down a nine-page questionnaire agreed upon by the lawyers, who would use the answers to seat a 12-member jury, along with four alternates, from a pool of 60 potential jurors.
Jurors faced questions about their opinions of the Bush administration — Libby's former boss, Vice President Dick Cheney, specifically — classified information and the media furor that followed the case along the way. Part of that furor included former New York Times reporter Judith Miller's spending time in jail to protect her source, who turned out to be Libby.
One potential problem is that the jury pool is coming out of the nation's capital, a city where registered Democrats outnumber Republicans by nine to one. Party affiliation is one proposed question by Libby's attorneys.
In a nod to the amount of attention to privacy in this trial, the first set of instructions in the jury selection questionnaire specifically barred lawyers from asking jurors' their home addresses, place of birth, marital status, whether jurors have children and jurors' native languages.
The questions ranged from the routine — "Is there anything that I have said about this case that may affect your ability to be fair and impartial in this case" — to the extraordinary: "Would any of you have any difficulty fairly judging the believability of former or present members of the Bush administration."
In a similar vein: "Several witnesses who will testify in this case are members of the news media. Would any of you have any difficulty fairly judging the believability of a person who is a member of the news media?"
Less than an hour before jury selection was scheduled to start, Libby's lawyers submitted a memo saying, "The pretrial publicity in this case has been significant and in many cases has included inaccurate and inflammatory statements and assertions that are unduly prejudicial to Mr. Libby."
In the memo, Libby's lawyers said they needed to ask the potential jurors "about their exposure to such publicity and probe whether that exposure has affected their ability to impartially judge the facts in the case." The memo also stated it will be important to make sure jurors can decide their verdict based on evidence presented in the trial, "not incomplete facts and speculation circulating before trial."
Walton also warned the potential jurors not to have any contact with media coverage of the case, saying it was "imperative" to stay away from any newspapers, radio or television stories regarding the trial. Jurors will have access to newspapers that have been scrubbed of Libby-related stories.
In the courthouse, lawyers sparred over questions that were to be asked to the prospective jurors. Libby's team pushed to ask questions over specific media events they saw or stories they read, such as Special Prosecutor Patrick Fitzgerald's October 2005 news conference following Libby's indictment. Fitzgerald said such specific questions are unnecessary.
At the White House Tuesday, press secretary Tony Snow declined to discuss the case. Asked about the possibility of a presidential pardon for Libby, he replied, "I'm not aware of any discussions about a pardon."
The trial is expected to last four to six weeks. Arriving early with his wife and lawyers, Libby — the only person charged in an exhaustive Justice Department investigation — smiled at a reporter and asked "How's it going?" before heading to a nearby Starbucks for a cup of coffee.
The political tinge to the case suggests it has much more to do with the war itself than whether the revelation of Plame's identity broke any laws pertaining to classified information. Former Deputy Secretary of State Richard Armitage, who has acknowledged being the original leaker to columnist Robert Novak, has not been charged.
The jury questions also give another glimpse into Libby's defense team's plan, with a series of questions about potential jurors' possible prejudices toward how the human mind works. Libby plans a defense that will show that he believed he was telling the truth, even though it was factually incorrect, because he was under severe mental stress.
"Is there anyone who believes that everyone's memory is like a tape recorder and therefore all individuals are able to remember exactly what they said and were told in the past?" reads one question.
"Is there anyone who believes that it is impossible for a person to mistakenly believe that he or she was told something by one person when in fact the person was actually told the information by someone totally different several months earlier?" reads another.
Jury selection is expected to last through Wednesday or Thursday, and oral arguments are scheduled to begin Monday.
All jurors are routinely asked whether they have criminal records. In the Libby case, Walton has said the jurors will also undergo criminal background checks. Fitzgerald requested the background checks because, during his prosecution of former Illinois Gov. George Ryan, two jurors were replaced because they had police records. Defense attorneys are using that to challenge Ryan's conviction and Fitzgerald doesn't want to face the same problem in the Libby case.
The trial should give the public glimpses of how Bush administration insiders responded to critic Joseph Wilson, who claimed the president and his closest advisers distorted intelligence and lies to push the nation into war with Iraq.
Libby plans to be his own star witness. He says he didn't lie to investigators. During the Plame scandal and the FBI investigation, he says he was dealing with terrorist threats, the war in Iraq and emerging nuclear programs in Iran, North Korea and Pakistan. He says those overshadowed the Plame issue and clouded his memory about how and when he learned Plame's identity.
FOX News' Mike Levine and The Associated Press contributed to this report.