Scooter Libby's Doomed Defense
This essay was produced in cooperation with TomDispatch.
Shortly after Vice President 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 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 press 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; 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. The first 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." The second charges Libby with making false statements to the government about his conversation with NBC News reporter Tim Russert on July 10, 2003. The third charges him with making false statements to a government agent about a July 12 discussion with Time magazine reporter Matt Cooper. The fourth and fifth 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 the second count, for example, the indictment says that Libby offered the following account to 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 three and four: 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 undersecretary 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 learned about Valerie Plame, as if anew, only 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 on March 24, 2004, in this improbable way: "I told a couple 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 in his State of the Union Address about an Iraqi search for uranium from Niger.
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.