Ray Malone's Commentary

I didn't get to watch Special Prosecutor Fitzgerald's press conference when he announced the indictment of Lewis "Scooter" Libby. I did hear a bit of it on the radio before I saw the parts the media covered in TV news.

It was well into the press conference when I tuned it in on the radio. What struck me upon hearing Fitzgerald was how his voice was shaking. He sounded like a man under much stress and very fearful of something.

I remember hearing stress and fear in Ronald Reagan's voice during the first few seconds of his opening statement during the 1980 debate with Jimmy Carter. When lots of things are on the line it is not uncommon for one's voice to shake a bit. But that only lasts a few seconds. And as time goes on the person in the spotlight gains confidence. By the time Carter had answered his first question, Reagan was totally at ease and in total control of himself and his environment. He was at ease. Fitzgerald should have been totally at ease.

But I heard Fitzgerald's voice uncontrollably shaking well into his press conference. Long after he had delivered his statement and long after he had answered many softball questions from a supportive media. Long after he should have told himself.. "This baby is going my way. "

Why the fear? Why the tension? He had to be afraid of something. What is there for Fitzgerald to fear?

My Dad who was a great investigator and criminal interrogator, always said "When the witness is more nervous than you think he should be, stop and analyze." Dad said, "There is something he is very afraid you are going to deduce. Step back and think. Put what you know together. The subject's fear demonstrates you already have all the information needed to take him down."

I think it was the fact that Fitzgerald may have brought a frivolous case he has no chance of winning.

Let me make a hypothetical case.

Fitzgerald, during the press conference, was asked if he had any evidence against Scooter Libby other than the testimony of the three reporters. The reporters are Tim Russert of NBC, Matt Cooper of Time Magazine, and Judith Miller of the New York Times. Fitzgerald dodged the question. Say What???

We know a prosecutor has to supply the defense with all the evidence he has. So who was it Fitzgerald did not want to know if he had additional evidence. Libby's defense is going to know in short order. And when Libby's lawyers know it will not be a heart beat before Cheney and Rove's lawyers know. I repeat!. Why would Fitzgerald want to keep it a secret from the press.

I asked a good lawyer friend if Libby can depose the witnesses before the trial. The answer is he can not. But the lawyer said that when those reporters take the stand, Libby's attorney can ask probing questions. And if the reporters refuse to answer certain questions, the legal remedy for Libby is their testimony will be thrown out.

If all Fitzgerald has is the reporters testimony, he must have asked the three reporters lawyers if their clients will refuse to answer such questions at the trial. If Fitzgerald knows they are going to refuse to testify on some matters in the trial, then Libby walks. The case will be dismissed by the judge. It will never make it to a jury.

With that as background there are two questions reporters could have asked that could put Fitzgerald in a world of hurt Those questions are, "Have you or any of your staff asked the three reporters or their lawyers if they will refuse to answer some questions certain to be asked in the trial? And if you did ask them Mr. Prosecutor, what were their answers?

That would explain why Fitzgerald refused to say if he had evidence other than the reporters testimony. If Fitzgerald had other evidence he would have surely said so. It would be a claim that could lead potential jury members to think that Scooter Libby is guilty. Hot shot prosecutors never miss a chance to say something that would make potential jurors think the defendant is guilty.

I also know the standard advice that is always given to prosecutors on the day the indictments are announced. That advice, always given just before the triumphant prosecutor goes before the cameras and mikes is, "Don't look smug and don't act cocky." Obviously that advice was not needed for Fitzgerald on Fitzmas day.

Perhaps fear of revealing he brought a case that will never go to a jury is not the reason Fitzgerald's voice was shaking. Maybe he is certain of a conviction. But there has to be some reason a high flying prosecutor was scared and frightened while standing before a fawning media on the day of his greatest triumph.

Was Rush Limbaugh one of the reporters at the press conference? NO. Well that eliminates another possible reason for the shaking voice.