A Trial to Remember

By STACY SCHIFF
The New York Times
January 23, 2007

Who knew that 12 angry Americans could be so easy to come by — and a jury so difficult to assemble? “It took us all day to get six jurors qualified,” Judge Reggie M. Walton lamented last Thursday, after a contentious afternoon of voir dire in the Scooter Libby trial. Judge Walton had hoped to have seated his panel by then; selection took twice as long as expected. Opening arguments are scheduled for today, not the sort of trailer you would normally run before a State of the Union address.

To some minds, a jury has not been the only thing missing from United States of America v. I. Lewis Libby. “In the most important sense, this is a case without a crime,” The Wall Street Journal reminded us over the weekend. An artful leap followed: “Yes, Mr. Libby is charged with perjury and obstruction of justice, which are serious offenses.”

It is true that what began as a search for a leak ended — after much collateral damage — with an indictment for a lie. At this juncture it can be difficult to grasp what, precisely, is on trial. Some of us seem viscerally to wish something else were. While the original investigation stemmed from the charge that a public official had provided accurate information to the press, potential jurors appear more eager to charge a public official with having provided false information to a country. It was, after all, Mr. Libby who drafted the 2003 masterpiece that Colin Powell presented to the United Nations, the one about Iraq’s fabled chemical and biological weapons.

Juror 0420, an economist, couldn’t help but say she thought the Iraq war “a tremendous mistake, a horrendous mistake, and a betrayal.” She could not promise to be objective about Dick Cheney, who is slated to testify.

Juror 0244 reported “strong negative feelings about this current administration and its conduct of the war.” He was gone in seconds.

Juror 1140 admitted: “I believe the vice president would have had the defendant leak.” Had she any preconceived notions? “Guilty.”

Juror 1298 felt that she could muster the maturity to be open-minded about Mr. Libby. But when pressed by Judge Walton on whether a witness from the administration would carry “a strike against them,” she replied, “Probably.” Home she went.

Juror 1980 made herself crystal clear: “I cannot believe any statement from the Bush administration.” Bye-bye.

These exchanges produced a little rowdiness over in the press room, where stopwatches were set to see how long a potential juror could last. Remember that door-to-door campaign the president has promised for Baghdad? Those good-will ambassadors might be better deployed in our nation’s capital.

On the stand will be the vagaries of human memory. Hence the carefully crafted questions submitted by Libby’s team for prospective jurors: Can you honestly misremember? Is the memory like a tape recorder, or does it make mistakes? Can you falsely believe someone told you something when it was someone else, at a prior date? Can you hold to your memories even after they are found to be inaccurate?

The defense will contend that Mr. Libby’s recollections were honest, even if incorrect. “Confused, forgot or misremembered” are not crimes. Deliberate lying is; to be convicted, Mr. Libby must be shown to have willfully misled.

He claims to have been preoccupied with vital security issues and buried under intelligence information; he paid little heed to the matter of a C.I.A. officer’s employment. Technically this is called the “Honey, I was too busy preparing the family tax return to think clearly when you asked about the lap dancers” defense.

Surely it’s a legitimate one, if perhaps a little tough to swallow after six years of distorted intelligence and Enron-grade responsibility. Also, is it just me, or does that argument sound disconcertingly familiar? Wasn’t it Mr. Libby’s ex-boss who — when asked why he hadn’t served in Vietnam — replied, “I had other priorities in the ’60s than military service”?

Generally, a memory can prove a dangerous thing to have under this administration. Even I can remember W.M.D., Mohamed Atta, African uranium, shock and awe, mission accomplished, and a heckuva job — and I’m lousy when it comes to plot. The prodigious Mr. Libby, on the other hand, remembers all 79 “Star Trek” episodes. And their titles, too.

Stacy Schiff is the author, most recently, of “A Great Improvisation: Franklin, France and the Birth of America.” She is a guest columnist.

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