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 Ã¢€” 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.”