Toobin: Russert huge blow to defense

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NEW YORK (CNN) -- NBC's Tim Russert, the last prosecution witness in I. Lewis "Scooter" Libby's perjury trial, takes the stand again on Thursday.

The "Meet the Press" host testified Wednesday he did not inform Libby of CIA operative Valerie Plame's identity, as Libby has said.

The prosecution is expected to wrap up with Russert, and then the defense will have a chance to drill the prosecution's star witness.

CNN's Heidi Collins spoke with legal analyst Jeffrey Toobin about the effectiveness of the prosecution's tactics.

COLLINS: How big of a blow was Russert's testimony to Scooter Libby's defense?

TOOBIN: I think it's a huge blow. You know, this has been a very lean, quick and effective prosecution. The prosecution is just about done, and it's only really been about two weeks of testimony. And the prosecution has done what the prosecution always wants to do in a criminal case, which is say, look, this is simple -- Libby testified to the grand jury that he heard about Valerie Wilson's status as a CIA agent from Tim Russert.

The first group of witnesses and that included Fleischer and Miller and several other people in the government, all said, no, we told Libby about Valerie Wilson's status at the CIA, and then Russert finishes the circle and says, I never said a word to him; I didn't even know myself that Valerie Wilson worked for the CIA.

So I think the witnesses are coming at Libby from both sides, and it's a big problem for him.

COLLINS: We heard him say in this audio testimony so many times, I really just don't recall, I really just don't recall.

TOOBIN: Well, you know, it's important to emphasize that it's not a crime to fail to remember. Libby's problem is, his testimony is not that, boy, I just don't remember the whole thing.

He says, yes, I heard about her status, and I heard about it from Tim Russert. He appears to have invented a whole story about how he heard about it. It's not simply failure of memory.

So he has to say, if he testifies, and that's a very tough question for the defense, he has to say, well, all these other witnesses are mistaken, or I don't remember their conversations, and then Russert is also mistaken about the nature of our conversation.

I mean, that's a tough argument to make with a bunch of witnesses who really don't have axes to grind against Scooter Libby.

COLLINS: Right. And speaking of some of those other witnesses, let's talk a little bit about New York Times reporter Judith Miller and former White House Press Secretary Ari Fleischer. What stands out about their testimonies to you?

TOOBIN: Well, they were part of the earlier part of the case. And of course, as people may remember, Judith Miller went to prison for several months to avoid cooperating with Patrick Fitzgerald's investigation.

So she didn't want to be there, and she was sympathetic to Libby, in general, but she testified that they had a conversation about Valerie Wilson's status as a CIA agent.

Same thing with Ari Fleischer -- they had a lunch in the White House mess where they talked that Scooter Libby -- that Valerie Wilson worked at the CIA, again, putting a hole in Libby's testimony before the grand jury, saying he'd only heard about it from Tim Russert. How he explains that is going to be a big challenge.

COLLINS: As the prosecution is expected to wrap up today, defense will take over. Are we going to see Scooter Libby on the witness stand?

TOOBIN: Boy, that's a tough call. Given the way the trial is going it, it looks like they're leaning away from calling him. They've some made legal arguments that suggest he's not going to be called. But it's a problem when you're going to the jury and say, look, he's only human, he didn't remember.

Even though a jury is instructed, don't hold a defendant's silence against him, when you have such a specific defense relating to the state of mind of the defendant, you usually want to hear from the defendant, and say, well, what do you mean you don't remember?

And so I think it's going to be a very tough call about whether he testifies. Certainly the defense will include some aspects of how busy he was, how many important responsibilities he had relating to the war on terror, all of which is true.
And that will be easy for the defense to prove, but the bigger problems relate to the issue of memory. And Dick Cheney, a similar issue of whether they want to bring him before the jury, when, in Washington, he's not a particularly popular person.

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