January 24, 2007: Judge: ‘Suicide’ for Defense Not to Allow Libby to Testify

In the Lewis Libby perjury trial, the testimony of CIA briefer Craig Schmall (see January 24-25, 2007) is interrupted by a lengthy sidebar between prosecutors and defense attorneys. The question centers around the defense’s apparent efforts to introduce Libby’s “memory defense” (see January 31, 2006) without actually placing Libby on the stand to testify to his allegedly poor memory. During the discussion, Judge Reggie Walton observes that it will be “suicide” for the defense not to allow Libby to testify. “There will be no memory defense if Libby doesn’t testify,” he says. “If Mr. Libby doesn’t testify there’ll be no memory defense. I don’t see how a memory defense exists.” [Marcy Wheeler, 1/25/2007] Former prosecutor Christy Hardin Smith, writing for the progressive blog FireDogLake, writes that Libby’s lawyers are attempting “to slip that memory defense and the national security information which has already been ruled, in part, to be very limitedly admissible, if at all, into the minds of the jury through a back door and a completely unrelated witness.” She notes prosecutor Patrick Fitzgerald’s argument that Libby’s lawyers are attempting to “bootstrap” the evidence and the arguments into the case without necessarily placing Libby on the stand. Smith writes, “To pull this sort of stunt during trial is a slap at the authority of the court and its very detailed, very specific orders—and the judge’s very careful and thorough consideration of the defendant’s rights to this very closely guarded, very difficult to obtain information regarding some highly classified national security matters.” Lead defense lawyer Theodore Wells, she writes, “could not stop himself from ‘gilding the lily’” by attacking the credibility of Schmall and fellow CIA witness Robert Grenier (see January 24, 2007). Walton has long since ruled that if the Libby team wants to mount a “memory defense,” it must do so with Libby’s own testimony. Smith writes that with this and an unrelated attempt by Wells to delay the trial (see January 25-29, 2007), Wells’s “hubris” may have irreparably damaged his team’s standing with Walton. [Christy Hardin Smith, 1/25/2007]