Scooter Libby’s Fall

TIME‘s Michael Duffy has an interesting look at theScooter Libby saga entitled, “Fall Of A Vulcan – How a very smart and very loyal aide to Dick Cheney got indicted for allegedly lying about his role in defending the war.” The part I found most interesting was buried on page 3

When Novak’s column naming Plame for the first time appeared, all hell broke loose at the CIA. The agency’s lawyers launched an internal probe of the leak, and within months the Justice Department had opened a criminal investigation. Fitzgerald was appointed to run the case, and the hard-charging prosecutor began interviewing witnesses within weeks. That, according to Fitzgerald, is when Libby began to spin his web. In his interviews with the FBI and later in his testimony to the grand jury, Libby swore that he had first heard about Wilson’s wife not from other senior officials in June 2003 but instead on July 10 or 11, 2003, from NBC News Washington bureau chief Tim Russert. Libby also told the feds that Russert volunteered in the same call that “all the reporters” knew about Plame’s work.

Similarly, Libby’s account of a brief July 12, 2003, call with TIME’s Cooper differs from Cooper’s recollection.

Libby’s lawyers said last week that they were “surprised” and “distressed” by the charges and noted that “a person’s recollection and memory of events will not always match those of other people, particularly when they are asked to testify months after the events occurred.” They have vowed to mount a “vigorous” defense, and one even told a colleague the case is winnable. But a number of veteran criminal-defense attorneys believe a trial will be avoided for one reason: Libby’s lawyers face the prospect of calling veteran journalists’ credibility into question and permitting the prosecutors to call some of the most senior officials in the government, like the Vice President, to the stand. In an environment in which little to nothing has gone right for the White House, politics alone could compel a Vulcan like Libby to take one for the team.

Of course, any plea bargain also has the potential to endanger higher-level officials like Cheney, who is mentioned more than once in the indictment. Fitzgerald’s document notes, for example, that Libby flew with Cheney on July 12 to Norfolk, Va., and discussed with some officials on the return trip how to handle the Cooper inquiry–an indication that Fitzgerald has reason to at least investigate a conspiracy that might involve the Vice President. Rove too could be ensnared if Libby cuts a deal. So far, Fitzgerald has declined to detail in his indictment the conversation Libby and Rove had about the Novak story before it broke–and whether they discussed the legality of leaking Plame’s identity. A trial might provoke a deeper autopsy into how that may have worked–something the White House is surely not keen on.

Some observers wondered last week why a bright lawyer like Libby bothered with a cover story at all. The indictment offers scant evidence that Libby knew Plame was a covert officer, a key test in the 1982 law barring such disclosures. By that logic, Libby could have told the truth about everything he did and still avoided criminal exposure. But other lawyers pointed out that it’s easy to forget that Fitzgerald hasn’t made public everything he knows. The two senior officials who discussed Plame’s employment with Libby may have testified that they warned Libby about the secret nature of her work. “Some things,” said a lawyer for one witness, “come out only at trial.”

I don’t know the rules of evidence for D.C., where I presume the trial will be held, but most (all?) jurisdictions in the United States require the prosecutor to divulge all their evidence to the defense team so that they can mount an adequate defense. The state isn’t supposed to have surprise witnesses.

The cloak-and-dagger routine is hard to explain given the information publically available at this stage. It would appear that evidence is there that Libby learned that Wilson’s wife was a CIA employee from classified sources. It’s still not clear that he knew she was working under a Non-Official Cover (or, indeed, whether she still was). Of course, if Fitzgerald has witnesses that could testify to those facts, one would think he would have charged Libby with a crime related to that, rather just the more technical crimes of perjury and obstruction.

Update (0520): Richard Schmitt has a plausible partial explanation for why we know so little.

Ever since Watergate, special federal investigations of political scandals have often ended with detailed accounts of the inner workings of government. The probes might take years; they might cost millions; but at the end, they often provided a rich, detailed story of episodes in question. The reason was the independent counsel law, created by Congress in 1978 because it felt the executive branch could not be trusted to investigate itself in cases of alleged abuse and corruption. Independent counsels gave the nation book-length — even multi-volume examinations of the Iran-Contra affair and of President Clinton’s relations with a former intern. But Congress in 1999 chose not to renew the law authorizing them, out of concern that they had been used to pursue partisan witch hunts.

Fitzgerald, by contrast, is a special prosecutor, charged with bringing violations of the law to court, rather than information to the court of public opinion. His spare account suggests that with the independent counsel statute gone, the public is apt to know far less about the actions of elected officials and government bureaucrats when they are engaged in conduct that may be questionable but that does not violate the law.

“My job is to investigate whether or not a crime was committed, can be proved and should be charged,” Fitzgerald said Friday as he announced an indictment of Libby for allegedly lying to the FBI and a grand jury investigating the leak case. “I’m not going to comment on what to make beyond that. It’s not my jurisdiction, not my job, not my judgment.” Because only Libby was charged, he said, he would not be answering questions about the actions of other officials. Some legal experts see the new practice as a good development, restoring proper restraint as investigators ferret out information about wrongdoing. Prosecutors should focus strictly on bringing and proving charges in court; watchdogs such as Congress and the media can use their own powers to sort out lapses in judgment by policymakers, this thinking goes.

“There is a trade-off,” said John Q. Barrett, a professor at St. John’s University law school in New York and a former associate independent counsel. “The public does not automatically get the fruits of the good information that a criminal investigation does gather.”

Fitzgerald acknowledges as much:

Fitzgerald acknowledged the frustration that some people feel in wanting to learn more about the actions of public officials. “I know that people want to know whatever it is that we know, and they’re probably sitting at home with TVs thinking, ‘I want to jump through the TV, grab him by his collar and tell him to tell us everything they’ve figured out over the last two years,’ ” the prosecutor said Friday. “We just can’t do that,” he said, “not because we enjoy holding back information from you. That’s the law.”

True.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. odograph says:

    It’s still not clear that he knew she was working under a Non-Official Cover (or, indeed, whether she still was).

    I’m surprised you don’t link to the relevent section of the Indictment:

    On or about June 12, 2003, LIBBY was advised by the Vice President of the United States that Wilson’s wife worked at the Central Intelligence Agency in the Counterproliferation Divison. LIBBY understood that the Vice President had learned this information from the CIA.

    As the “liberal blogs” remind us, this is enough to know she was in the Directorate of Operations, the covert branch of the CIA.

    The defense would have to be that Libby did not know the Counterproliferation Divison was in the Directorate of Operations … but for an expert on CIA operations that may not be a good bet.

    also at daily kos

  2. James Joyner says:

    Odo: We already know that Libby knew her status was classified, having gained the information through a classified doc, and that she working in the Counterproliferation Division.

    Most DO officers aren’t undercover spooks, they merely manage the collection of intelligence. Not veryone who works in the DO is a covert agent under the law or even the conversational meaning of the term.

  3. odograph says:

    This jobs page at the CIA makes it look pretty one:one.

    (note the word “clandestine” in the page’s url)

  4. odograph says:

    BTW, some observers think the case is pretty tight. This bit in particular relates to what we were just discussing:

    Anyone with knowledge of the CIA’s organizational chart (but particularly Cheney and Libby) knows that the Counterproliferation Division is part of the CIA’s Directorate of Operations (i.e., where the spooks are), and not where the more benign employees (e.g., analysts) are assigned. The indictment also makes it clear that Plame’s status at the CIA was classified, and that disclosure of such status could jeopardize national security.

    This article concludes in an even stronger way:

    Voila! All of the elements, at least of the Espionage Act (if not the Intelligence Identities Protection Act), have been made out in the indictment. So, why go to all the trouble of setting up the factual predicates for violations of the classified information statutes in the indictment (especially when he didn’t have to) and then stop short of charging them? The explanation he gave during his press conference (i.e., that he was balancing the interests of the First Amendment with the wisdom of charging the crime) does’t fly. Subpoenaing reporters, sending one to jail and threatening to do the same to another one demonstrate, I suggest, his less-than-overarching concern about the First Amendment. And, his expressed concern that the U.S. statute governing classified information not become subject to the loose application which has characterized its British analog (i.e., the “Official Secrets Act”) also rings hollow, especially given the fact that he trumpeted, loud and long, during his press conference the serious violations of national security the conduct in this case appears to have constituted.

    No, the real reason to lay out as much factual detail as he did was for Fitz to show the world (and in particular, the world within the White House) that he has the goods, and that he won’t hesitate to drop the dime on some additional malefactors, particularly, Cheney. Let’s face it: Libby is only the consigliere to Cheney’s don. Even though the threat of spending 30 years in the pokey will be a powerful incentive for Libby to cut some kind of deal that might include turning on his boss, the possibility of the additional charges of revealing classified information, particularly against Cheney, is even more powerful since, presumably, Cheney does’t appear to be at risk of a truth-telling-related indictment.

  5. James Joyner says:

    It is in to CIA’s advantage to portray jobs as more exciting than they are. From the page you reference, we see that the careers in the Clandestine Service are:

    Field-based Clandestine Opportunities:
    Core Collector:
          Operations Officer
          Collection Management Officer
    Professional Trainee Program

    Washington-based Clandestine Opportunities:
    Staff Operations Officer
    Collection Management Officer—Headquarters-based Specialist
    Operational
    Targeting Officer

    Operations Officer/Specialized Skills Officer

    DO Language Officer

    I’m guessing that very few of the “Washington-based” positions qualify as “Clandestine” in any meaningful sense of the word.

    That’s not to disparage their fine and important work in any way; merely to note that these guys aren’t James Bond.

  6. odograph says:

    That’s very weak James.

  7. odograph says:

    To be clear you are asking me to accept this logic:

    “because not all DO employees were spies, Libby was right to assume that a random DO employee was not a spy.”

    Are you kidding me? That is responsible use of classified intelligence?

    Would YOU, if you knew of a DO employee happily tell that name to the press (or in your blog) on the ASSUMPTION that a DO employee was not a spy?

  8. Hal says:

    I think you have to assume James would. All his arguments seem to say that Libby would have been a fool to not assume she was undercover. Still, it’s fun to see James walk this back. Just days ago he was pretty sure her job status wasn’t secret. Let’s see how he walks his latest positions back as new information becomes available. Must say that I don’t think I would be too confident of Jame’s handling of classified info, given his positions sofar. But maybe this all a partisan front, and the real James would act quite differently.

  9. odograph says:

    I think we could draw a little flowchart for the “talking point bloggers.” It would spell out when it is OK to undermine the instruments of American government. Of course, there is only one question:

    Are you part of a conservative administration (Y/N)?

  10. James Joyner says:

    Hal:

    I’ve never argued that her job status wasn’t secret in the sense that it was classified; the argument is that her job wasn’t “secret” in the dictionary sense of “Kept hidden from knowledge or view; concealed.”

    The other, related, argument is over whether, at the time she was “outed,” she was still serving as a covert agent under NOC. It certainly appears that she was not.

  11. odograph says:

    It is only an “argument” whether “she was still serving as a covert agent under NOC” if your goal is to minimize the indicted crime.

  12. James Joyner says:

    Libby was not indicted for any crime related to outing Plame. He was indicted for lying to a grand jury about where he learned Plame’s name and to whom he told it and when.

  13. odograph says:

    Don’t even.

    Libby was indicted for his repsonses in an investigation of the outing of V. Plame.

    The prosecutor made clear that Scooter’s lies clouded his vision of Scooter’s role in that outing.

    Only a believer in alternate fantasy worlds would say “Libby was not indicted for any crime related to outing Plame.”

    To fallback on the “name” bit is even more absurd. By the prosecutors comments it was clear that he did not see the “name” is critical in the matter. He said:

    Valerie Wilson’s cover was blown in July 2003. The first sign of that cover being blown was when Mr. Novak published a column on July 14th, 2003.

    But Mr. Novak was not the first reporter to be told that Wilson’s wife, Valerie Wilson, Ambassador Wilson’s wife Valerie, worked at the CIA. Several other reporters were told.

    In fact, Mr. Libby was the first official known to have told a reporter when he talked to Judith Miller in June of 2003 about Valerie Wilson.

    The prosecutor is not foolish enough to think a “name” is required to indentify someone in a monogomous society. “Ambassador Wilson’s wife” is more than sufficient in an information age.

  14. Bithead says:

    Odo, face it;
    There’s no mention in the indictment that the supposed ‘outing’ of plame was a crime.

  15. odograph says:

    From the indictment:

    14. On or about June 23, 2003, LIBBY met with New York Times reporter Judith Miller.

    During this meeting LIBBY was critical of the CIA, and disparaged what he termed “selective leaking” by the CIA concerning intelligence matters. In discussing the CIA’s handling of Wilson’s trip to Niger, LIBBY informed her that Wilson’s wife might work at a bureau of the CIA.

    Of course the focus is on the outing, or such encounters would not be in the indictment.

    … you’d have a point if such things were NOT there.

  16. odograph says:

    Oh, for extra emphasis, from Mr. Fitzgerald’s news conference:

    This is a very serious matter and compromising national security information is a very serious matter. But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important. We need to know the truth. And anyone who would go into a grand jury and lie, obstruct and impede the investigation has committed a serious crime.I will say this: Mr. Libby is presumed innocent. He would not be guilty unless and until a jury of 12 people came back and returned a verdict saying so.

    But if what we allege in the indictment is true, then what is charged is a very, very serious crime that will vindicate the public interest in finding out what happened here.

  17. ken says:

    Most DO officers aren’t undercover spooks, they merely manage the collection of intelligence. Not veryone who works in the DO is a covert agent under the law or even the conversational meaning of the term

    James, her job was and still is classified information. What authoritative source, within the CIA, are you relying on to say that she was not covert?

    The whole point of being covert is to make people like you believe that she was not covert.

    Those who really know are never going to confirm or deny anything at all about her real job James, that would be giving too much away. How difficult is this for you to understand? For national security reasons the CIA probably prefers that people like you not know the truth about what Valerie Plame did, or did not do, or when she did, or did not do it.

  18. Herb says:

    Hey Ken:

    If Joe Wilson went to Nigeria for the CIA, then he must have been on a “Classified” mission.

    That being the case, then why did Joe Wilson tell all to the NYT?

    Wasn’t that a breach of securty?

  19. Bithead says:

    Of course the focus is on the outing, or such encounters would not be in the indictment

    Read again what I said, Odo… these things were not listed as CRIMES. Regardless of it pissing someone off, or not, he hasn’t mentioned that the act was a crime because at that point it demonstrably WAS not.

  20. odograph says:

    Are you saying if no one is caught, no crime is committed? There was no airline hijacking, ransom, because the man known as D.B. Cooper was never indicted?

    The TV was full of serious folks from the CIA last night, talking about how serious a blow the Novak column was to the agency, and how it was precisely the kind of thing the Act(s) were supposed to stop.

    Think about it. If you endorse that level of leak as not a crime, you are saying it is OK for Novak to print another name every week, right?

  21. odograph says:

    Better yet … you are saying it is right for liberals … The Nation perhaps … to do the same thing? They should name CIA agents whenever they think it is a good story, and a Democratic administration should supply them?