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

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!


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

Be that as it may, there can be no question that the verdict in the Scooter Libby trial has consequences beyond the obvious and immediate legal ones for Libby himself. If Libby had been judged not guilty, it would obviously bring the investigation to a close under a cloud of illegitimacy, serving effectively to vindicate the conduct of the administration in responding to Joe Wilson, regardless of the fact that the investigation and the trial have revealed that no fewer than four senior administration officials—Richard Armitage, Libby, Ari Fleischer and Karl Rove—were blowing Plame's cover by leaking to reporters in June-July 2003, and as far as we know none of them suffered any consequences from the Bush administration itself.

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

So what are the consequences of the verdict beyond the obvious legal consequences for Libby himself? The main one, it seems to me, is that given the evidence adduced at the trial and, especially, the way Patrick Fitzgerald raised the stakes in his closing rebuttal (which can now, I believe, be read pretty much in its entirety here—a normally useless joke of a website), the cloud of suspicion that hangs over Vice President Cheney will darken. Fitzgerald suggested Cheney both directed Libby to leak Plame's CIA identity in July 2003 and countenanced Libby's expressed intention to mislead investigators in fall 2003 as to Cheney's own role. Fitzgerald obviously was not going to make the claim stronger than a suggestion, because then he would have opened himself up to the claim that Fitzgerald had not proven that beyond a reasonable doubt, and there was no reason for Fitzgerald to do so. But he also introduced a good deal of evidence, both in witness testimony and in documents, indicating not just that Cheney was deeply involved in responding to Joe Wilson (whose criticism of him apparently infuriated him) but that Cheney was well aware, throughout the relevant period, that Wilson's wife worked at the CIA and considered that an important part of the pushback against Wilson. Cheney was of course also Libby's first source of the information about Plame. Fitzgerald also introduced evidence from Libby's grand jury testimony itself that Cheney was in a position to know what Libby's story to investigators would be, and was in a position to know that it was false. And yet he did nothing when Libby recounted it to him before going to talk to investigators, beyond simply taking it in.

Fitzgerald has just said that he does not expect to file any more charges and that the investigation is now inactive, barring any new information. That means that Fitzgerald has no intention of pursuing Cheney himself on any possible charges. Beyond that, however, given his constrained, literal-minded interpretation of the checks on his power (nicely illustrated in Jane Mayer's seminal New Yorker profile of Cheney's chief of staff and legal genius David Addington) and his immunity to public opinion, Cheney's own response to a Libby conviction and the cloud 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 if memorable phrase, "a screw-up and a moron of historic proportions" the question is: will there actually be any consequences for Vice President Cheney himself from the facts that have been revealed and the trial and conviction of his main advisor for obstructing an investigation that focused, to no small extent, on Cheney's own role in directing Libby to leak Plame's identity to reporters? The question, I presume, goes to Congress if it goes anywhere.

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 lower


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

"I do not expect to file any more charges," Fitzgerald told the group of reporters outside the federal courthouse early this afternoon. (I was there, trying to unfreeze the ink in my pen.) The investigation is "inactive," Fitzgerald said, and had been for quite a while before the Libby trial began. You could sense a lot of anti-Bush hopes falling as he uttered those words.

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

So where does it go now? If Fitzgerald is correct, beyond the appeals for Libby, the criminal investigation goes nowhere. The CIA leak investigation, which began nearly three and a half years ago, is over. The only real possibility of it going on—besides the much-anticipated Joe and Valerie 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 retrospective hearings on events relating to Iraq in 2002 and 2003 much more appealing than trying to decide what to do in Iraq in 2007. So it's possible we'll have some sort of hearings. But you have to remember: Democrats placed Patrick Fitzgerald on a very high pedestal. I think everyone would agree that Fitzgerald investigated the hell out of this case, bringing people before the grand jury over and over and over. He decided not to bring any charges against anyone for the leak of Valerie Plame Wilson's identity, and charges against just one person, Libby, for obstructing the investigation. And then he expressed his desire to move on. Republicans will have a powerful 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
The public should know


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 ...


As it happens, I do appreciate the difference between a criminal investigation and congressional oversight. And yes, the CIA leak investigation was conducted largely in secret, although witnesses were always free to discuss their grand jury testimony in public. But if you believe congressional investigations are pursued in public, you haven't read the highly-redacted Senate Intelligence Committee report that deals, in part, with the Wilsons and the Niger affair, and you haven't attended the closed sessions of the intelligence and other committees that deal with classified material and might handle this matter. (Neither have I; they're closed.)

Congress deals with a lot of classified stuff, and the CIA leak investigation would certainly involve that. Should it all be public, in the name of congressional oversight? Maybe so. I, for one, would certainly like to see the documents showing precisely what Valerie Plame Wilson's status at the CIA was. Was she covert in July 2003? Was her status changing? Was she moving into other areas of the CIA? Perhaps Congress will find out for us.

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

I am not an independent counsel. I am bound by the laws of grand jury secrecy. We're bound by the laws that we don't talk about people who have not 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 magazine articles 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. If you want people to come in and tell the truth, and you tell them, "If you talk to us, there's grand jury secrecy, there are protections for you," we have 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 a trial, 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 to Congress?" Fitzgerald was vague. "If Congress does something or not—I'm not going to predict or say what they would do—we will do what's appropriate," he said. "I've not had a parallel investigation. We'll do what's appropriate."

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

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