Wednesday, March 7, 2007

Busting Libby Myth #1

It would have been sensible for Mr. Fitzgerald to end his investigation after learning about Mr. Armitage. Instead, like many Washington special prosecutors before him, he pressed on, pursuing every tangent in the case.
- Washington Post Editorial, 3/7/07

Here the Washington Post practically transcribes the conservative talking point. Let's put this myth to rest. Fitzgerald did not come on board, discover that no prosecutable crime had occurred, and continued on -- Ahab-like -- until he finally landed an administration scalp.

The indictment dates the first instance of lying to the investigators on October 14, 2003. Patrick Fitzgerald was not appointed as Special Prosecutor until December 30, 2003. Investigators had already spent more than two months speaking with witnesses who contradicted Libby's account. The indictment lists nine instances where Libby spoke to others about Plame before he allegedly learnt of her identity from Russert. Of the multiple witnesses who gave these accounts, only Judith Miller would not have been available to investigators at the time Fitzgerald was appointed. The FBI could not have failed to suspect that Libby had told a whopper.

Fitzgerald didn't go on a hunt for administration blood. He did not lay perjury traps. He walked into an office and was immediately presented with some damning facts about a possible crime. He would have been derelict in his duty if he did not pursue this matter.


The MinuteMan said...

Of the multiple witnesses who gave these accounts, only Judith Miller would not have been available to investigators at the time Fitzgerald was appointed.

1. Robert Grenier told the FBI and the grand jury that he didn't remember discussing Ms. Plame with Libby; he finally told the grand jury of his new and improved memory in 2005. Strike him.

2. Ari Fleischer took the Fifth with the FBI and finally testified to the grand jury after getting an immunity grant from Fitzgerald in Jan 2004. Strike him.

3. Matt Cooper first testified to the grand jury in the summer of 2004. Strike him.

And with Miller out, at this point the eight witnesses to the nine conversations are down to four witnesses to four conversations - Cathie Martin, Marc Grossman, Craig Schmall, and Tim Russert.


As to the notion that Fitzgerald was intent on investigating this - after Fleischer testified that he leaked to John Dickerson and David Gregory, Fitzgerald never called them in to verify it. That is an oddly passive leak investigation.

However, if your point is that Fitzgerald took over with the idea of running a perjury investigation with Libby as a target, well, who can argue against it?

Tom Maguire

The MinuteMan said...

Sorry, David Addington also belongs on the "Had a conversation about the spouse" list based on his grand jury testimony, but when he described his chat with Libby to the FBI he hadn't said anything about a spouse. So strike him. That leaves the four noted above.

Tom Maguire

Wagster said...

Thanks for clarifying those points, Tom.

However, I think my point stands. Four contradictory accounts is more than enough to raise suspicions. As to why Fleischer wasn't further investigated, perhaps Fitzgerald did exactly what his critics have said he should have done -- he stopped pursuing tangents when it was clear that there was no prosecutable crime.

In the case of Libby, the prosecutable crime was apparent the minute he walked through the door. No pre-conceived "idea" was necessary for him to pursue it.

The MinuteMan said...

If your point is that this was essentially a perjury investigation from the day Fitzgerald took it, a lot of PR problems (and real ones) flow from that for Fitzgerald - just FYI.

For example, he filed an affidavit exhorting an appeals court to find Judy Miller in contempt - his filing left them with the idea that he had a major national security leak investigation under way.

Maybe that was a bit deceptive.

Or, DoJ guidelines discourage prosecutors from bringing in people with the specific goal of bagging them for perjury - one might wonder whether Fitzgerald pushed those guidelines a bit.

Look, I have no doubt that Libby's story was odd, but - if a decision had been made that the leak did not violate the law, just what was the point?

The most likely outcome, if Libby had testified to "the truth" Fitzgerald wanted to hear:

Libby: Yes, Cheney and I discussed Ms. Plame on July 7.

Fitzgerald: Did he saw she was classified?

L: No.

F: Did he tell you to out her?

L: No.

And what is Cheney going to say?

At which point, Fitzgerald thanks him and goes home.

Now, if Libby had said, gee, thanks for asking, Cheney told me she was classified but I outed her anyway because I figured that would benefit my Iranian paymasters - well, then, IIPA and Espionage Act charges might be in play.

But really...

Tom Maguire

Wagster said...

I think you're misunderstanding me, Tom. By "no prosecutable crime" I don't necessarily mean "no crime". The alleged offenses have high burdens of proof that might not have been met, so Fitzgerald's failure to make these indictments does not indicate that he was being untruthful to the appeals court.

Libby's story is odd, and it will always be a mystery how such a smart lawyer got himself into that bind. My guess is he tried to do too much... if Fitzgerald had believed him the whole investigation would have been defused since her identity would already have been compromised. It's hard to come up with another story that would achieve that goal: the scenario you paint certainly wouldn't. It's a very calculated attempt to obstruct justice.

Bruce Moomaw said...

Libby's story is indeed "odd". A pity that Maguire isn't interested in what might possibly have motivated such an "odd" story. Last June the AP's Pete Yost pointed out, in detail ( ), one obvious reason for Libby to lie: not LEGAL, but POLITICAL.

The White House -- throughout the end of the 2004 campaign -- was steadfastly denying that Rove, Libby, or anyone else had discussed Plame's identity with reporters AT ALL, because the revelation that they had been eagerly blabbing it to multiple reporters -- regardless of whether it was an actual violation of the law -- might very well have swung that very close election. The apparent intent had been for Libby and Rove to continue telling the same lie to the investigators -- but Fitzgerald unexpectedly cracked the reporters AFTER Libby had already perjured himself, but just before Rove would have irreversibly done so. (As Yost points out, the White House continued to insist that Rove had "had no role in leaking Valerie Plame’s CIA identity" at the same time that Rove "was secretly telling the FBI the truth.")

Let's also note Mark Kleiman's Feb. 19 comments on the subject ( ): "Tom Maguire, alone of those I challenged on the question of the classified status of Valerie Plame Wilson's employment at the time Scooter Libby and friends started blabbing it all over Washington, responds. Yes, he says, her employment status was classified, but (maybe) she wasn't, or couldn't be proven to have been, a 'covert agent' under the Intelligence Identities Protection Act.

"But that makes nonsense of the Byron York/Glenn Reynolds/Victoria Toensing thesis that Patrick Fitzgerald is a Very Bad Man for running a big investigation where there was no underlying crime to investigate, and that therefore Scooter Libby is morally innocent because the lies he told the investigators and the grand jury took place in the course of an investigation that never should have happened. (More or less like Bill Clinton's lies about Monica Lewinsky.)

"If VPW's employment by the CIA was classified information, as Maguire concedes it was, then revealing it could have been a violation of the Espionage Act, if the person doing the revealing had 'reason to believe' that the information 'could be used' to damage the United States. (If the information couldn't be so used, then it shouldn't have been classified.)

"Whether anyone had actually broken that law, and whether that could be proven beyond reasonable doubt, and whether under the circumstances there should be a prosecution under the Espionage Act (given what a potential threat it is to freedom of the press), couldn't have been determined without doing an investigation. That's what Fitzgerald was told to do, and that's what he did. Moreover, Libby couldn't have known WHEN HE TESTIFIED [emphasis mine -- Moomaw] that he was in the clear, giving him an excellent motive for perjury and obstruction of justice."

Wagster said...

Good points, Bruce. In a perverse way there is something noble about these people. Both Rove and Libby could have taken the fifth like Fleischer did and the matter would not have seen the inside of a courtroom. However, their political cause would have been badly bruised. If it had leaked out that two of Bush's men had taken the fifth, then 2004 might well have swung the other way. They made a great sacrifice, which is probably why their defenders are working so hard for them today.