Star Witness for Libby Camp Is a No-Show

Vice-President Dick Cheney was supposed to testify for the defense in CIA leak trial. (Photo courtesy
Vice-President Dick Cheney was supposed to testify for the defense in CIA leak trial. (Photo courtesy

Analysis by Robert A. Mintz, ABC News Legal Analyst

It shouldn't come as a great surprise that Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, has decided not to take the stand in his own defense as his federal trial on charges of perjury and obstruction of justice winds down.

Defendants rarely do, and in a sense the jury has already heard from him: The prosecution played eight hours of tapes from his grand jury testimony.

Besides, there is little that Libby can add that his lawyers can't already argue based on the testimony of other witnesses. But the decision by the defense not to call Cheney is far more significant.

Cheney was supposed to be Libby's alter ego on the stand. He was supposed to bring the prestige and authority of the vice president's office to Libby's defense. Without exposing Libby to the perils of cross-examination, Cheney was supposed to tell jurors Libby's side of the story.

Who better than Cheney to put into proper context the rigors of Libby's White House position and explain to the jury how, in the daily barrage of weighty national security issues, Libby could have innocently misremembered a previous conversation concerning a relatively insignificant matter?

The problem is, Cheney has become more of a liability for Libby than an asset -- or at least that's what Libby's lawyers appear to have concluded.

Once Cheney takes the stand, the defense runs the risk of turning the trial into a referendum on the administration's Iraq policy -- surely something defense lawyers want to avoid.

Beyond that, the prosecution will certainly probe Cheney's own role in the White House's efforts to discredit former ambassador Joseph Wilson, the man whose public comments challenged the Bush administration's rationale for proceeding to war.

In so doing, the arguably insignificant issue concerning Wilson and his wife, former CIA operative Valerie Plame, suddenly takes on newfound importance.

Perhaps even more damaging is the possibility that Cheney's cross-examination will give jurors a less-than-flattering look behind the curtain of White House policymaking. The last thing Libby needs is a jury inflamed with anti-administration sentiment.

In the end, the defense wants to keep jurors focused on its client. What did he know? When did he know it? And what did he say -- and not say -- to others?

The defense wants jurors to see him as a dedicated public servant who was doing his best to protect his country. If he made a mistake, it was an innocent one made at the direction of others.

In deciding not to call Cheney in Libby's defense, Libby's lawyers recognize that in their efforts to save their client, Cheney -- long Libby's closest ally and staunchest supporter -- has suddenly become his enemy.

Robert A. Mintz, a former federal prosecutor, now heads the Securities Litigation and White Collar Criminal Defense Practice at McCarter and English, LLP. Mintz was an ABC News legal analyst during the Martha Stewart trial.

Copyright © 2007 ABC News Internet Ventures

Posted by R. Smith, KTRE-TV