Starting Monday, lawyers for I. Lewis “Scooter” Libby will begin their defense of the indicted former White House aide with a parade of witnesses, including prominent journalists, former co-workers and maybe even his old boss, Vice President Dick Cheney.
But will Libby testify?
Libby and his lawyers face a Hobson’s choice about what is normally the make-or-break decision in criminal trials.
His unusual defense to perjury charges in the CIA leak case — that he misspoke because he was having to juggle so many other duties as Cheney’s chief of staff — would seem to require that he take the witness stand to explain it.
But if he testifies, Libby also risks exposing himself to serious questions about his credibility and a grilling by a prosecutor with a reputation for doggedness.
“He is in a tough position,” said Carolyn Koch, a Fairfax, Va., jury consultant. “As a defendant, you don’t want to help the government prove the case against you. [But] it seems impossible for him not to testify. How can you have a memory defense and not testify about your own memory?”
Almost from the moment he was indicted in October 2005, Libby, through his lawyers, has indicated that he planned to testify. The possibility that his legal team is flirting with the idea of keeping him off the witness stand was raised in court papers last week.
Special Prosecutor Patrick J. Fitzgerald has said that U.S. District Judge Reggie B. Walton should not allow the defense to raise the memory issue unless Libby testifies. Libby’s lawyers said in the filing with Walton that putting conditions on the defense would violate their client’s right to remain silent under the 5th Amendment.
Some experts said they doubted Libby would choose not to testify, and they viewed the filing as a legal ploy to draw a ruling from Walton that could be used as a basis to overturn any verdict against their client on appeal. They could argue that Libby was, in effect, coerced to testify in violation of his constitutional rights.
Not testifying has worked for some defendants, perhaps most famously O.J. Simpson in his murder trial.
Theodore Wells Jr., Libby’s lead lawyer, once represented former Agriculture Secretary Mike Espy at a trial in which Espy chose not to take the stand; he was cleared of bribery charges.
But most experts said the strategy works only when the government case appears weak. Simpson had the benefit of the famous glove that did not fit. In the case against Espy, prosecutors were unable to show that the alleged bribes — tickets to sporting events, among other gifts — had any influence on his official conduct.
In Libby’s case, the government has avoided any major pratfalls, while raising substantial questions about what Libby knew and when.