Today both prosecution and defense are scheduled to make closing arguments in the perjury and obstruction trial of Lewis Libby. During the trial, prosecutor Patrick Fitzgerald and chief defender Ted Wells each presented nine witnesses. The jury saw dozens of documents and also heard all eight hours of Libby’s testimony before Fitzgerald’s grand jury.

That’s the case; there won’t be any more evidence or testimony. So now, with the trial over except for closing arguments and the jury’s deliberations, we have an opportunity to evaluate Fitzgerald’s charges in light of the evidence presented in court.

The indictment of Libby, announced on October 28, 2005, is made up of five counts. Two of the counts, one each of perjury and making false statements, are based on a single conversation Libby had with Matthew Cooper, then of Time magazine, on July 12, 2003. Two other counts, one of perjury and one of making false statements, are based on a single conversation Libby had with NBC’s Tim Russert on July 10 or 11, 2003. The remaining count, obstruction of justice, is based on Libby’s testimony about both conversations. (Originally, the obstruction count was also based, in part, on a conversation Libby had with Judith Miller, then of the New York Times, but midway through the trial prosecutors conceded that they had presented no evidence to support that element of the case and agreed with the defense’s request that it be stricken from the charges against Libby.)

Each count of perjury and false statements carries a maximum prison sentence of five years. The obstruction of justice count carries a maximum sentence of ten years, meaning that if Libby were to be convicted of all counts, he could face a total of 30 years in prison. So here are the counts, and the evidence presented to support them.

THE COOPER COUNTS
The false statement count against Libby that relates to Cooper accuses Libby of lying to FBI agents when he described his conversation with Cooper in this way:

During a conversation with Matthew Cooper of Time magazine on July 12, 2003, Libby told Cooper that reporters were telling the administration that Wilson’s wife worked for the CIA, but Libby did not know if this was true.

As defendant Libby well knew when he made it, this statement was false in that: Libby did not advise Cooper on or about July 12, 2003 that reporters were telling the administration that Wilson’s wife worked for the CIA, nor did Libby advise him that Libby did not know whether this was true; rather, Libby confirmed for Cooper, without qualification, that Libby had heard that Wilson’s wife worked for the CIA.

The evidence presented at trial to support this count was Cooper’s testimony. Cooper swore that during a phone conversation with Libby, he, Cooper, brought up the subject of Valerie Plame Wilson being involved in sending her husband, former ambassador Joseph Wilson, to Niger to check out claims that Iraq had sought uranium there. “He [Libby] said words to the effect of, ‘Yeah, I’ve heard that, too,’“ Cooper testified.

“Did he at any time indicate that he heard it from reporters?” Fitzgerald asked.

“No,” said Cooper.

That is the entirety of the evidence to support the Cooper false-statement charge against Libby. Fitzgerald also presented Cooper’s notes from the conversation, but parts of them were so garbled — one line read, and this is an exact quote, “had somethine and about the wilson thing and not sure if it’s ever” — that no one was able to make any sense of them.

The perjury charge against Libby, as it relates to Cooper, is similar, except that it charges him with lying to the grand jury, not the FBI. According to the indictment, these are among the portions of Libby’s testimony about his conversation with Cooper that were false:

I was very clear to say reporters are telling us that because in my mind I still didn’t know it as a fact. I thought I was — all I had was this information that was coming in from reporters…

I said, reporters are telling us that, I don’t know if it’s true. I was careful about that because among other things, I wanted to be clear I didn’t know Mr. Wilson. I don’t know — I think I said, I don’t know if he has a wife, but this is what we’re hearing…

I didn’t want the reporters to think it was true because I said it. I — all I had was that reporters are telling us that, and by that I wanted them to understand it wasn’t coming from me and that it might not be true….

Basically, we didn’t know anything about him [Joseph Wilson] until this stuff came out in June. And among the other things, I didn’t know he had a wife. That was one of the things I said to Mr. Cooper. I don’t know if he’s married. And so I wanted to be very clear about all this stuff that I didn’t, I didn’t know about him. And the only thing I had, I thought at the time, was what reporters are telling us.

The evidence to support that count was also Cooper’s testimony — he testified under oath that Libby simply didn’t tell him that. But prosecution lawyers also argued that Libby’s “I don’t know if he has a wife” testimony was false, because other witnesses testified that Libby learned about Valerie Plame Wilson well before his July 12, 2003 conversation with Cooper. But it is also possible to read Libby’s testimony as a description of what he told Cooper in that phone call, and, if it is read that way, Libby’s testimony might mean simply that he lied to a reporter. That reading of Libby’s account is also supported by the fact that Libby told the grand jury he learned about Mrs. Wilson from Vice President Dick Cheney in early June; he never maintained that he didn’t know about Mrs. Wilson when he spoke to Cooper. In any event, that is the totality of the evidence supporting the Cooper Counts against Libby.

THE RUSSERT COUNTS
The false statement count against Libby that relates to Tim Russert accuses Libby of lying to FBI agents when he described his conversation with Russert in this way:

During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Russert asked Libby if Libby was aware that Wilson’s wife worked for the CIA. Libby responded to Russert that he did not know that, and Russert replied that all the reporters knew it. Libby was surprised by this statement because, while speaking with Russert, Libby did not recall that he previously had learned about Wilson’s wife’s employment from the Vice President.

The indictment charges that statement was false because Russert did not, in fact, tell Libby that all the reporters knew about Mrs. Wilson and that Libby was “well aware” — and therefore not surprised to learn — that Mrs. Wilson worked at the CIA.

The evidence to support the false statement charge is Russert’s testimony, plus the other testimony that Libby knew about Mrs. Wilson. During a brief examination of Russert on the witness stand, Fitzgerald asked, “Did you tell Mr. Libby that Wilson’s wife worked at the CIA?” Russert answered, simply, “No.” He also testified that he did not tell Libby that all the reporters knew that, and he emphasized that he simply could not have told Libby about Mrs. Wilson because he didn’t know about her at the time of their conversation. “That would be impossible,” Russert testified, “because I didn’t know who that person was until several days later” — meaning the day he read about Mrs. Wilson in Robert Novak’s July 14, 2003 column.

There is, however, one more bit of evidence that Libby’s lawyers tried to highlight, and that is a report written by an FBI agent, Jack Eckenrode, who interviewed Russert by phone on November 24, 2003 — nine months before Russert’s grand jury testimony in August 2004. Eckenrode, who took notes but did not record the conversation, wrote that “Russert does not recall stating to Libby, in this conversation, anything about the wife of former ambassador Joe Wilson. Although he could not completely rule out the possibility that he had such an exchange, Russert was at a loss to remember it, and moreover, he believes that this would be the type of conversation that he would or should remember. Russert acknowledged that he speaks to many people on a daily basis and it is difficult to reconstruct some specific conversations, particularly one which occurred several months ago.”

During the trial, Libby’s lawyers emphasized the “not completely rule out the possibility” and the “difficult to reconstruct some specific conversations” parts of Eckenrode’s notes in hopes of introducing some doubts in the jurors’ minds about Russert’s recollection. They also pointed out that Eckenrode’s conversation with Russert was much closer in time to the actual conversation with Libby than Russert’s testimony before the grand jury and the trial, and therefore his recollection then might be more reliable than his recollection now.

The second Russert Count, the perjury count, alleges that Libby lied to the grand jury about his conversation with Russert when he said the following:

And then he said, you know, did you know that this — excuse me, did you know that Ambassador Wilson’s wife works at the CIA? And I was a little taken aback by that. I remember being taken aback by it. And I said — he may have said a little more but that was — he said that. And I said, no, I don’t know that. And I said, no, I don’t know that intentionally because I didn’t want him to take anything I was saying as in any way confirming what he said, because at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning. And so I said, no, I don’t know that because I want to be very careful not to confirm it for him, so that he didn’t take my statement as confirmation for him…

So then he said — I said — he said, sorry — he, Mr. Russert said to me, did you know that Ambassador Wilson’s wife, or his wife, works at the CIA? And I said, no, I don’t know that. And then he said, yeah — yes, all the reporters know it. And I said, again, I don’t know that. I just wanted to be clear that I wasn’t confirming anything for him on this. And you know, I was struck by what he was saying in that he thought it was an important fact, but I didn’t ask him anymore about it because I didn’t want to be digging in on him.

The evidence against Libby for the perjury count is the same as the evidence against Libby for the Russert false statement count.

OBSTRUCTION OF JUSTICE — AND REASONABLE DOUBT
The obstruction of justice count, which carries a ten-year prison term, is a combination of the other counts. In a recent filing with the court, Fitzgerald argued that the obstruction count consists of three allegedly false statements by Libby. The first is when Libby testified that Russert told him that all the reporters knew Wilson’s wife worked for the CIA. The second is when Libby testified that he was surprised when Russert allegedly told him about Mrs. Wilson. And the third is when Libby testified that he told Cooper that reporters were telling him, Libby, that Mrs. Wilson worked for the CIA. The evidence for the obstruction count is the same for the earlier counts.

And that is the case against Libby. The counts overlap each other and rely heavily on the memories of three people — Libby, Cooper, and Russert — about two conversations. Who will the jury believe? Certainly Fitzgerald’s evidence for the two Cooper Counts is quite weak. Libby says one thing, while Cooper says another. It’s entirely possible the jury simply will not accept Fitzgerald’s allegation in the absence of more definitive evidence.

The two Russert Counts appear to be stronger. Part of that is due to Russert himself; he was solid and unwavering in his testimony about his conversation with Libby. But there is no more documentary evidence to support Russert’s story than there is to support Cooper’s (or Libby’s, for that matter.) It is not clear if the defense scored any points by challenging Russert’s memory about other matters, nor is it clear jurors will view Agent Eckenrode’s notes as evidence that Russert was originally not quite as sure about his recollection as he seemed on the witness stand.

Finally, it’s not clear what effect Russert’s celebrity will have on the jury. Russert appeared to have a significant amount of credibility when he testified, owing in part to his stature as host of Meet the Press. But during jury selection, several of the people who eventually made it onto the jury said they had never watched Meet the Press and were not familiar with the ways of the Washington journalistic establishment. They might look at Russert and see not a respected national journalist but just another guy whose memory might or might not be correct.

Added to it all, it’s not clear what effect the memory lapses suffered by several other prosecution witnesses — especially former CIA official Robert Grenier and former Times reporter Judith Miller — will have on the jury. Both witnesses were forced to concede that over the course of the investigation, they forgot and then remembered significant parts of their accounts of events.

What does it all add up to? In the end, it seems hard to believe that Libby will be acquitted on all counts. The jury is, after all, a District of Columbia jury, and it stretches the imagination to believe they would unanimously exonerate Dick Cheney’s chief of staff.

On the other hand, it is possible to believe that jurors will reject the weakest counts against Libby, probably the two involving Cooper. And it is also imaginable that one or two jurors will look at the rest of the charges and say something to the effect of: “This is ridiculous. Nobody in this case can remember his name, and everybody was gossiping about Wilson and his wife.” If that happens, a hung jury, at least on some counts, seems a real possibility.

The key to it all is the issue of reasonable doubt. Fitzgerald has to convince all the jurors that Libby is guilty beyond a reasonable doubt on at least one of the charges. The defense has to meet a lesser standard; all it must do is convince jurors that there exist reasonable doubts about the prosecutor’s case. Given the series of memory lapses, changed testimony, and conflicting stories that have been presented in the courtroom, that is something the jury has had plenty of chances to believe.