The Scooter Libby trial: the consequences of today's verdict

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Guilty on four of five counts: Was Scooter Libby the key to a culture of corruption in the Bush White House, or just a victim of the perjury trap? All this week, Byron York and Jeff Lomonaco will be debating the Libby trial and the many ramifications of the leak brouhaha. Yesterday, York and Lomonaco discussed the roots of the case. In the days to come, they will take on the culture of D.C. journalism, the suspect loyalty of the Bush Administration, and Plame/Wilson superstardom.

We're lookin' at you, Dick! By Jeff Lomonaco
Byron,

I've always been more interested in what the CIA leak investigationrevealed about what happened in 2003 and even 2002 than in thespecific question of who would be charged with what and what theoutcome would be. One of the imperfections of relying on criminalinvestigation for government oversight that it focuses on the questionof who gets indicted and convicted, so that objectionable conduct thatis not prosecuted ends up looking more acceptable by comparison.

Be that as it may, there can be no question that the verdict in theScooter Libby trial has consequences beyond the obvious and immediatelegal ones for Libby himself. If Libby had been judged not guilty, itwould obviously bring the investigation to a close under a cloud ofillegitimacy, serving effectively to vindicate the conduct of theadministration in responding to Joe Wilson, regardless of the factthat the investigation and the trial have revealed that no fewer thanfour senior administration officials—Richard Armitage, Libby, AriFleischer and Karl Rove—were blowing Plame's cover by leaking toreporters in June-July 2003, and as far as we know none of themsuffered any consequences from the Bush administration itself.

But Libby has now been convicted on four of five counts, including theobstruction of justice charge. (It turns out that he was acquitted onCount 3, the count everyone felt was the weakest and the count thejury asked the most questions about, suggesting in the end that thejury was not confused but least confident of guilt precisely whereeveryone else was.)

So what are the consequences of the verdict beyond the obvious legalconsequences for Libby himself? The main one, it seems to me, is thatgiven the evidence adduced at the trial and, especially, the wayPatrick Fitzgerald raised the stakes in his closing rebuttal (whichcan now, I believe, be read pretty much in its entirety here—a normally useless joke of a website), the cloud of suspicion thathangs over Vice President Cheney will darken. Fitzgerald suggestedCheney both directed Libby to leak Plame's CIA identity in July 2003and countenanced Libby's expressed intention to mislead investigatorsin fall 2003 as to Cheney's own role. Fitzgerald obviously was notgoing to make the claim stronger than a suggestion, because then he would have opened himself up to the claim that Fitzgerald had not proven thatbeyond a reasonable doubt, and there was no reason for Fitzgerald todo so. But he also introduced a good deal of evidence, both inwitness testimony and in documents, indicating not just that Cheney was deeplyinvolved in responding to Joe Wilson (whose criticism of himapparently infuriated him) but that Cheney was well aware, throughoutthe relevant period, that Wilson's wife worked at the CIA andconsidered that an important part of the pushback against Wilson.Cheney was of course also Libby's first source of the informationabout Plame. Fitzgerald also introduced evidence from Libby's grandjury testimony itself that Cheney was in a position to know whatLibby's story to investigators would be, and was in a position to knowthat it was false. And yet he did nothing when Libby recounted it to himbefore going to talk to investigators, beyond simply taking it in.

Fitzgerald has just said that he does not expect to file any morecharges and that the investigation is now inactive, barring any newinformation. That means that Fitzgerald has no intention of pursuingCheney himself on any possible charges. Beyond that, however, givenhis constrained, literal-minded interpretation of the checks on hispower (nicely illustrated in Jane Mayer's seminal New Yorker profileof Cheney's chief of staff and legal genius David Addington) and his immunity topublic opinion, Cheney's own response to a Libby conviction and thecloud of suspicion over him is likely to be...nothing. So,putting aside entirely the larger questions about Cheney's follies past and present and whether he is, in Josh Marshall's intemperate ifmemorable phrase, "a screw-up and a moron of historic proportions" the question is: will there actually be anyconsequences for Vice President Cheney himself from the facts thathave been revealed and the trial and conviction of his main advisorfor obstructing an investigation that focused, to no small extent, onCheney's own role in directing Libby to leak Plame's identity toreporters? The question, I presume, goes to Congress if it goesanywhere.

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.


High hopes, getting lowerBy Byron York
Jeff,

I got the impression reading your post that you began writing inhopes that the CIA leak investigation would go on with new energy, andmidway through, you read Fitzgerald's comments.

"I do not expect to file anymore charges," Fitzgerald told the group of reporters outside the federalcourthouse early this afternoon. (I was there, trying to unfreeze the inkin my pen.) The investigation is "inactive," Fitzgerald said, and had beenfor quite a while before the Libby trial began. You could sense a lot ofanti-Bush hopes falling as he uttered those words.

Still, Fitzgerald said that he could not rule out further action ifhe received new information. The administration's critics certainly hopethat the newly-convicted Libby will provide that information. WhileFitzgerald would not comment on that, he seemed to express a genuine desireto get back to his "day job."

So where does it go now? If Fitzgerald is correct, beyond theappeals for Libby, the criminal investigation goes nowhere. The CIA leakinvestigation, which began nearly three and a half years ago, is over. Theonly real possibility of it going on—besides the much-anticipated Joe andValerie Wilson movie, starring Alec Baldwin, and an actress to be named later—lies with Democrats in Congress.

What will they do? Certainly they would find retrospectivehearings on events relating to Iraq in 2002 and 2003 much more appealingthan trying to decide what to do in Iraq in 2007. So it's possible we'llhave some sort of hearings. But you have to remember: Democrats placedPatrick Fitzgerald on a very high pedestal. I think everyone would agreethat Fitzgerald investigated the hell out of this case, bringing peoplebefore the grand jury over and over and over. He decided not to bring anycharges against anyone for the leak of Valerie Plame Wilson's identity, andcharges against just one person, Libby, for obstructing the investigation.And then he expressed his desire to move on. Republicans will have apowerful argument when they say that this case is closed.

Byron York is White House correspondent for National Review. His coverage of the Libby trial can be read at nationalreview.com.


The public should knowBy Jeff Lomonaco
Byron,

Before Fitzgerald announced that the investigation was, in effect, over today, I thought there was a real possibility that he might pursue Cheney. But I did not hope so. Indeed, I've been expressing skepticism at the idea since it was first reported (see, for instance, here more than two weeks ago). The time for an indictment of Cheney came and went in October 2005. And Fitzgerald passed.

It's also almost unimaginable to me that Libby would turn on the boss to whom he has been so loyal through so much, especially since upon his indictment, Bush and Cheney both might as well have publicly announced that a pardon was in the offing for Libby. But it would actually be more damning if Bush were to pardon him now, before the chance for vindication through the appeals process, than on Christmas Eve 2008.

So we are left with the question of congressional action.

I refuse to believe that you do not appreciate the difference between a criminal investigation and congressional oversight. They are different in scope, purpose and process. Criminal investigations are devoted principally to the specific question of whether crimes were committed and, if so, by whom and whether they should be prosecuted, and only secondarily to performing an oversight role; oversight and checking power are the whole point of congressional inquiry, and it looks not only at criminal conduct but at the performance of government more broadly, including misconduct that is not criminal. Criminal investigations are conducted in secret; congressional inquiry may be and ideally is pursued in public, and as much of the results are made publicly available and transparent as possible.

You say Republicans will have a powerful argument that the case is closed because Fitzgerald investigated the hell out of it. But you must know that the one thing doesn't follow from the other. We know very little of the course and outcome of Fitzgerald's investigation. As you yourself have pointed out, there are numerous publicly unknown dimensions of the matter. What was Cheney's role? What was Rove's? What was Armitage's? Don't you want to know?

Maybe if Fitzgerald just turned over all his files to Congress, Congress could write up a report and publish the files that could legitimately be published. But it strikes me as ludicrous to presume that because Fitzgerald's secret investigation was thorough in looking for criminal liability, the public understands what happened.

Moreover, the highest members of the Bush administration—Bush, Cheney and Rove specifically—have used the criminal investigation and then the trial as an excuse to dodge public comment on and therefore public accountability for their own roles in the matter. It makes no sense now to turn around and offer the excuse that the investigation is over so they can move on without explaining themselves.


We already know ...By Byron York
Jeff,

As it happens, I do appreciate the difference between a criminalinvestigation and congressional oversight. And yes, the CIA leakinvestigation was conducted largely in secret, although witnesses werealways free to discuss their grand jury testimony in public. But if youbelieve congressional investigations are pursued in public, you haven't readthe highly-redacted Senate Intelligence Committee report that deals, inpart, with the Wilsons and the Niger affair, and you haven't attended theclosed sessions of the intelligence and other committees that deal withclassified material and might handle this matter. (Neither have I; they'reclosed.)

Congress deals with a lot of classified stuff, and the CIA leakinvestigation would certainly involve that. Should it all be public, in thename of congressional oversight? Maybe so. I, for one, would certainlylike to see the documents showing precisely what Valerie Plame Wilson'sstatus at the CIA was. Was she covert in July 2003? Was her statuschanging? Was she moving into other areas of the CIA? Perhaps Congress willfind out for us.

For his part, Fitzgerald gave an impassioned defense of grand jury secrecywhen he met the press outside the courthouse today:

I am not an independent counsel. I am bound by the laws of grand jurysecrecy. We're bound by the laws that we don't talk about people who havenot been charged. So we are not going to be opening up our file drawers,handing them over to you guys to write newspaper articles or magazinearticles or books, whatever you want to do. That's not the system.And part of that, I think we ought to appreciate as citizens, is fair. Ifyou want people to come in and tell the truth, and you tell them, "If youtalk to us, there's grand jury secrecy, there are protections for you," wehave to live by our word. And we gave our word to have people talk to us.And unless we've going to file charges or it becomes public, as it does at atrial, that's it.

When asked, "If Congress chooses to investigate the leak—the Plame leak,will you cooperate with them? Will you make your records available toCongress?" Fitzgerald was vague. "If Congress does something or not—I'mnot going to predict or say what they would do—we will do what'sappropriate," he said. "I've not had a parallel investigation. We'll dowhat's appropriate."

Now, Congress can do what it wants. And there will certainly be members whowill want to take on the CIA leak matter. And if they do, Karl Rove andother officials can go to Congress and explain that they did not claimexecutive privilege, or protective-function privilege, or bookstore-customerprivilege, or any other privilege when testifying before the grand jury andthat they will not claim any privilege before Congress, either. And thenthey will testify. I hope that's what they do, if it comes to that. Justdon't overestimate what we'll learn from it all. After listening to everyday of the (very public) Libby trial, I think we know what happened.

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