Libby's 'some other dude did it'
defense By Elizabeth de la Vega
Shortly after Vice President Dick Cheney's
former chief of staff, I Lewis "Scooter" Libby,
was indicted for obstructing justice and making
false statements to a government agent and a grand
jury, Libby's attorneys suggested that they would
use the standard
he's-a-busy-man-who-can't-remember-everything
defense.
But now, with Washington Post
reporter Bob Woodward's revelation that a senior
administration official other than Libby told him,
in mid-June 2003, that Joseph Wilson's trip to
Niger had been arranged by Wilson's Central
Intelligence Agency (CIA) operative wife Valerie
Wilson, it appears the Libby team has
added
another favorite, the SODDI defense - as in, "some
other dude did it." Unfortunately for Libby, that
turkey won't fly. Here's why.
According to
Libby's attorney, Theodore Wells, Woodward's
disclosure is a "bombshell" that "undermines the
prosecution" because it disproves Special
Prosecutor Patrick Fitzgerald's alleged contention
that Libby was the first senior administration
official to reveal to a reporter that Valerie
Wilson worked as a CIA analyst. Not true. For
starters, a prosecutor's news conference
statements are irrelevant to, and not admissible
in, the trial of the case. And Fitzgerald never
said Libby was the first official to have
disclosed information about Valerie Wilson
(Plame); he said Libby was the first official
known to have disclosed such information.
More important though, it is of no help to
Libby that another administration official, "some
other dude", disclosed classified information
about Valerie Wilson's employment in order to
discredit her husband before Libby himself did so.
(By the way, Woodward's impression that the
disclosure by his source was "casual" proves
nothing about whether the smearing official knew
that the information being leaked was classified.)
Despite the impression newspaper readers may carry
away from the flap over Woodward, Libby is not
charged with being the first to disclose Valerie
Wilson's employment; he's not charged with
disclosing anything at all. And in a criminal
trial, it is the charges that define the issues.
What, exactly, are those charges?
There
are five counts. Count one charges Libby with
obstructing justice by deceiving the grand jury
about when and how he "acquired and subsequently
disclosed to the media information concerning the
employment of Valerie Wilson by the CIA". Count
two charges Libby with making false statements to
the government about his conversation with NBC
News reporter, Tim Russert, on July 10, 2003.
Count three charges him with making false
statements to a government agent about a July 12
discussion with a Time magazine reporter, Matt
Cooper. Four and five charge him with making false
statements to a grand jury about those
conversations.
So, the essential questions
on which a jury would have to pass judgment at a
trial would be: 1. Did Libby make the
statements that the indictment alleges he made?
2. Did the statements relate to an issue that
was material - that is, important to the
investigation? 3. Were those statements true
when Libby made them? 4. If the statements
were not true, did Libby make them deliberately,
knowing they were false? In other words, did he
lie on purpose or did he simply make a mistake?
These, and only these, are the questions
the jury would consider. As to count two, for
example, the indictment says that Libby offered
the following account to Federal Bureau of
Investigation (FBI) agents in the fall of 2003:
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."
Will there be any question
about whether Libby actually made that statement
to FBI agents or that it related to an important
matter? Probably not.
The contested issues
at trial will surely be questions 3 and 4: Whether
this statement was a true account of his
discussion with Russert and, if not, whether Libby
deliberately lied. To determine whether the
statement was true, it's necessary to consider its
multiple assertions, which are: (1) In a
conversation on July 10 or 11, Russert asked Libby
if he was aware that Wilson's wife worked for the
CIA; (2) Libby said he didn't know that; (3)
Russert told him that all the reporters knew it;
and (4) Libby was surprised because he did not
recall previously learning about Wilson's wife's
employment from the vice president.
Russert says he did not ask Libby whether
Wilson's wife worked for the CIA as Libby claimed,
nor did he tell him that "all the reporters knew
it". The government's proof that Libby's statement
was a knowing falsehood does not depend on whether
the jury believes Russert over Libby, but it is
worth mentioning that Russert has no easily
imaginable reason for lying about this. He was a
reluctant witness, not criminally at risk, and had
no motive to try to incriminate Libby.
More important, however, even without
factoring in additional information, Russert's
account is inherently credible and Libby's is not.
Even if Russert did ask whether Libby knew about
Wilson's wife's employment, it is nearly
impossible to believe that Libby could have been
"surprised" by the information. After all, he is,
by all accounts, an extremely intelligent and
meticulous man who, as he admits himself in the
statement, had learned about this fact from the
vice president, his boss and our second-highest
official. Moreover, his statement to the FBI
agents can have been no passing slip or mistake,
since he elaborated on it six months later. He
then told the grand jury that he was "taken aback"
by Russert's question about Wilson's wife 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".
Libby's
eternal-sunshine-of-the-spotless-mind defense is
harder yet to believe given what the prosecutor is
apparently prepared to prove: that Libby had been
preoccupied since May 2003 with Wilson's
allegations that the administration knowingly used
a false claim about Iraqi attempts to purchase
uranium from Niger to make its case for war; and
that, by July 10, when Libby talked with Russert,
he had discussed Wilson's wife's employment not
only with the vice president, but also with at
least six other officials, including a senior CIA
officer, an under secretary of state, Libby's CIA
briefer, the White House press secretary, the
assistant to the vice president for public
affairs, and the counsel to the Office of the Vice
President. In addition, Libby had already talked
about it twice with reporter Judith Miller.
As it stands now, Libby is on record as
saying that he first learned Joseph Wilson's wife
worked for the CIA from the vice president. (That
he had to admit, since he had notes reflecting the
conversation.) What he now claims is that whatever
the vice president told him fled his brain and he
only learned about Valerie Plame, as if anew, when
Tim Russert spoke with him in July 2003.
Even that encounter, Libby says, failed to
jar his memory about previous conversations with
the vice president and seven other people, so that
when he talked to Time's Matt Cooper about it on
July 12, he was merely relaying what "other
reporters", not the vice president, had told him.
Indeed, Libby specifically described his defense
to the grand jury in this improbable way: "I told
a couple [of] reporters what other reporters had
told us, and I don't see that as a crime." (This
statement was in itself odd, considering that he
specifically told the grand jury he had learned
about Wilson's wife only from Tim Russert.)
Interestingly, Libby's formulation of his
defense - that the information about Valerie
Wilson's employment was the subject of reporter
"chatter" and "gossip" - is precisely the spin
that Bob Woodward had been offering in appearances
on Larry King Live and other talk shows
(before he was revealed as the first reporter to
have Plame's information leaked to him).
In turn, the Woodward revelation was
preceded on November 15 by a leak from "lawyers
close to the defense" to the New York Times
indicating that the Libby defense team planned to
seek testimony from numerous journalists, not just
those named in the indictment, in order to
determine what the "media really knew". As Libby's
lawyer put it on November 16, "Hopefully, as more
information is obtained from reporters, like Bob
Woodward, the real facts will come out."
Libby's defense team should be careful
what it hopes for, because the real facts don't
help Libby at all. Woodward's recent disclosure
merely adds another senior administration official
to the already large group who were obviously
working with Libby to distract the public from a
truth the administration had already fessed up to
- that the president had made an entirely
unsubstantiated claim about an Iraqi search for
uranium from Niger in his state of the union
address.
It's not that "some other dude
did it" or that "some other dude did it first".
The more the real facts about smearing and
deception by senior administration officials come
out, the more obvious it is that lots of them did
it - and Patrick Fitzgerald shows no signs of
folding up his tent and departing. In the
meantime, the SODDI defense is likely to prove not
only unhelpful to Libby but a potential disaster
for the Bush administration, sweeping yet more
people into the case.
Elizabeth de
la Vega is a former federal prosecutor with
more than 20 years' experience. During her tenure
she was a member of the Organized Crime Strike
Force and chief of the San Jose branch of the US
Attorney's Office for the Northern District of
California. Her pieces have appeared in the Nation
magazine, the Los Angeles Times, and regularly at
Tomdispatch.
