The Trial Isn't That Mysterious

In Libby Defense To Rest Without Testimony by Him or Cheney running Wednesday on page 1, Amy Goldstein and Carol Leonnig report on the apparently startling news that Lewis Libby will not testify:

Attorneys for I. Lewis "Scooter" Libby said yesterday that he and Vice President Cheney, his former boss, will not testify in Libby's perjury trial, leaving the defense preparing to rest its case today after barely more than two days of testimony.

The defense's announcement in court, partway through the fifth week of the celebrated trial of the vice president's former chief of staff, represented an abrupt shift from the witness strategy that Libby's lawyers laid out in hearings and court papers during the months leading up to the trial.

There have been changes, but there was never any guarantee the defendant would testify--always a risky venture--and describing this move as "abrupt" makes sense mainly if you haven't been focusing on the actual tactics of Team Libby. The big shift was almost immediately abandoning the defense's out-of-left-field contention that Libby was being scapegoated by figures in the Administration, especially Rove. Strange, and scarcely pursued. What has been pursued is Witness Memory Loss Syndrome and significant damage done to star witness Tim Russert. But Goldstein/Leonnig have consistently ignored these Rosetta stones scattered generously across the courtroom, and remain true to their school on Wednesday:

"It's a pretty tepid defense that's been mounted, and I wouldn't even say mounted," [professor Carl] Tobias said. "There was all this information to suggest the defense was going to put on more of a defense than we saw."

Libby's attorneys did not publicly explain why they decided that the two men should not testify.

Attention all lawerly PostWatchers: Is it common practice for attorneys to explain in the middle of a trial why the defendant or anyone else won't testify?

They continue:

For the past several days, however, they had been laying groundwork for a possible change in course, filing court papers and repeatedly asking U.S. District Judge Reggie B. Walton to permit them to preserve the faulty-memory defense even if they chose not to call Libby as a witness.

Lo, many papers have indeed been filed. But the last few days have exposed one cratered memory after another. The main defeat for Libby there was not convincing the judge to permit a memory expert to testify. But who needs that!--what we got is some fieldwork, none of this theoretical crap. Here's a sample from commenter nittypig (don't ask) at Just One Minute:

Fleischer says he didn't tell Pincus [about Plame]. Pincus says he heard from Fleischer. Both under oath. Fleischer says he told Gregory (under oath). Gregory denies this (sadly we didn't hear from him under oath). Woodward says he told Pincus. Pincus says he didn't hear from Woodward. Both under oath. And that's just off the top of my head.

I'll add one more: Ari Fleischer saying he told Slate's John Dickerson--which Dickerson denies. And yet only people named Libby have been indicted.

And there still hasn't been any coverage, at all, of discrepancies in Tim Russert's recollection of his conversation with Libby. Russert testified it was "impossible" he told Libby about Valerie Plame because she never came up, but the FBI reported that Russert couldn't rule that out, in a previously secret interview that Russert refutes. Though that still may be a secret to the Post's readers, it's a significant non-secret for the jury, since Libby specifically is being charged with lying when he said  Russert told Libby about her. (Commenter and Kesher Talk blogger Alcibiades drills down into Russert  at her own site.)

Will the jury therefore acquit? I have no idea. But at least I'm not reduced to the impenetrable dense fogbank of mystery faced by this story's experts: Eliason and Carl Tobias, a University of Richmond law professor, said that Libby's defense team is experienced and must be confident that it has established reasonable doubt in cross-examination of prosecution witnesses.

I guess!