The Scooter Libby trial: What was the original sin?

The Intelligence Identities Protection Act was believed to be the prime mover behind prosecutor Patrick Fitzgerald's long investigation of White House leaks to the press, yet it ended up netting not a single indictment. Is the act too narrow? Too broad? Or should it even exist? All this week, Byron York and Jeff Lomonaco will be debating the Scooter Libby trial and the many ramifications of the leak brouhaha. In the days to come, York and Lomonaco will take on the perjury trap, the culture of D.C. journalism, the suspect loyalty of the Bush Administration, and Plame/Wilson superstardom.

Shallow charges and deep thoughts

Today the jury in the trial of I. Lewis "Scooter" Libby is in day nine of deliberations, with no end in sight. There was a lot of haggling in the courtroom this morning between prosecution and defense over how to answer a couple of questions from the jury. Jurors seem confused, or troubled, or something, over the charge that is based on Libby's testimony about a single conversation he had with Matthew Cooper, then of Time magazine. At times, the jury has seemed to be confused about whether Libby was charged with lying to Cooper or with lying to the FBI. Obviously, the answer was the latter—if government officials could be indicted for lying to reporters, our prisons would be far more crowded than they are today. But the jury's questions point to the ways in which the lack of an underlying crime has made this trial a very strange exercise.

In the first days of 2004, we all thought that prosecutor Patrick Fitzgerald was investigating whether anyone in the Bush administration violated the Intelligence Identities Protection Act, the Espionage Act, or some other national-security law when the identity of Valerie Plame Wilson was leaked to the press. But now we know that Fitzgerald, unable to find sufficient evidence to charge anyone with those very serious crimes, spent most of his three-year investigation looking for perjury, false statements, or obstruction of justice. He got Libby.

At the trial, it would have been nice for the prosecution if Fitzgerald had been able to tell the jury that Libby lied about a crime that Libby had committed. That would make the whole thing seem more, well, important. But of course, that's not the case. So instead, Fitzgerald tried, on nearly every day of the trial, to suggest that Libby committed some sort of crime in leaking Plame's identity. Jurors, most of whom didn't know much about the case when the trial began, must have been confused. And now, judging by their notes, they seem unsure of some of the basics of the charges against Libby.

When the trial is over, I guarantee you they will want to know more about this case. Was Valerie Plame Wilson covert? If she was, why wasn't anybody charged with blowing her cover? Why was Libby the only guy indicted?

Maybe they'll learn the answers in the movie. By the way, my vote for an actor to play Joseph Wilson is Alec Baldwin. Although eight years younger than Wilson, Baldwin has had a good run of late—whatever his politics, he's a marvelous actor—and could capture the deeply serious, don't-you-know-who-I-am, they're-treating-me-like-I'm-a-nobody-from-the-bowels-of-the-building quality that we've come to love in the former ambassador.

Finally, last Friday, the jury also sent out this question:

We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond reasonable doubt.
What does that mean? It appears that, besides being deep in the weeds of the CIA leak case, and not entirely understanding the charges against Libby, the jurors, or at least some of them, are succumbing to Really Deep Thoughts about the nature of guilt or innocence. This could take a while.

Byron York is White House correspondent for National Review. His coverage of the Libby trial can be read at
Who says there was no underlying crime?

Byron, you and I agree on one thing: Alec Baldwin is a marvelous actor. I think Baldwin's acting on the show 30 Rock is the funniest thing on network television right now. But that's about it. I find little to agree with in your view of the Libby trial and the investigation of the blowing of Valerie Plame's cover that eventuated in it. I don't even think Baldwin should play Joe Wilson in the movie version, and not just because I do not share your contemptuous view of Wilson himself.

I don't think the questions the jury has posed to the trial judge show the jurors to be as benighted as you seem to think. And that's partly because I don't think the prosecution's case has been particularly confusing (nor is there really any evidence that that is the cause of the jury's requests for clarification). Indeed, I'm a little surprised at the confidence with which you assert various things about special prosecutor Patrick Fitzgerald's investigation, both because it has been conducted in secret—a secrecy that Fitzgerald's team has preserved integrally—with relatively little of its strategy and direction revealed at trial, and because what has been disclosed does not really support your main contentions.

You speak confidently, for instance, of "the lack of an underlying crime" without offering any reason why we should not take seriously the notion that obstruction of an investigation actually obstructs the ability of investigators to make judgments about what crimes were committed.

What's more, an observation you've made elsewhere should undercut at least the confidence of that assertion as well as the notion that Fitzgerald was all along concerned solely or principally with so-called process crimes: It is now undeniable that Fitzgerald was investigating not just Libby's conduct but the conduct of his boss, Vice President Cheney himself, whom Fitzgerald suspected of directing Libby to disclose the fact that Valerie Plame worked for the CIA to reporters in July 2003. Not only Fitzgerald's stunning closing rebuttal, but also the eight hours of Libby's 2004 grand jury testimony make that quite clear. (I'll have more to say about this dimension of the case tomorrow.) To no small extent Libby is accused of obstructing that investigation. So the notion that Fitzgerald was focused only on obstruction-type crimes and not the possibility that laws were broken when Plame's cover was blown does not hold up.

You also make it sound like Fitzgerald was fishing around for process crimes and eventually settled on Libby. In fact, almost the reverse is true: When Fitzgerald took over the investigation at the very end of 2003, he took over from investigators who strongly believed that Libby had lied to them in fall 2003—lied to them extensively and egregiously and with a coherent pattern that pointed to a cover-up of his own conduct and the conduct of Dick Cheney. What was Fitzgerald supposed to do, simply let that go?

What is true is that Libby's outstanding lawyers succeeded in hemming in Fitzgerald on a number of matters relating to what Fitzgerald could claim about the propriety of Libby's underlying conduct. (If every defendant had Libby's fortune in being backed by the money of numerous Republican VIPs, I suspect we'd have a much fairer criminal justice System.) But that hardly means that Fitzgerald's investigation or his prosecution of Libby were as confused or confusing as you make it sound. The jury has very specific decisions to make. But I suspect you and I would agree that a lot more rides on the outcome than Libby's fate in the criminal justice system, as weighty as that is.

Jeff Lomonaco is an assistant professor of political science at the University of Minnesota, where he specializes in political theory. He has been doing analysis of the Libby trial for The American Prospect Online.

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