The Scooter Libby trial: Who cooperated and when?

Jeff,

In the wake of the Libby guilty verdicts, many Democrats are talking about the Bush administration's finally being held accountable for lying the nation into war, and there's also talk, as you wrote yesterday, of further "accountability" in the form of possible Congressional hearings. But I want to elaborate a little on something I brought up yesterday, which is the extraordinary degree to which the Bush administration, allegedly engaged in some sort of cover-up of its misdeeds, actually cooperated with the CIA leak investigation.

I think prosecutor Patrick Fitzgerald set a terrible precedent in this investigation, first demanding that administration officials sign waivers of confidentiality agreements with reporters, and then going to reporters to say, "See? I've got these waivers. You can testify—or you can go to jail." There was always an air of coercion about the waivers. Do you believe that Karl Rove, or Lewis Libby, or anyone else in the administration, if they were concerned only about their possible criminal liability, would have signed them? There's not a snowball's chance that they would have. Nor would they have gone before the grand jury again and again—five times in Rove's case, if I remember correctly. But they did do all that, either from political pressure or pressure from their boss or the belief that they had done nothing wrong. (Actually, the last is somewhat irrelevant, because even if you believe you haven't done anything wrong, you would not want to needlessly expose yourself to a grand jury questioning.)

The bottom line is that the Bush White House was a model of cooperation in this case. That's especially true compared to the last administration when, faced with a criminal investigation again focused on the truthfulness of sworn testimony, the White House and its allies claimed executive privilege, protection-function privilege, bookstore-bookbuyer privilege, mother-daughter privilege and God knows what else in an effort to frustrate the independent counsel. And don't forget that Susan McDougal, the president's former business partner, went to jail for 18 months rather than answer the question of whether President Clinton testified truthfully at her trial (at which she was convicted of fraud).

In comparison, the Bush White House's handling of the Fitzgerald probe has been astonishingly open. The exception, of course, is Libby, who has now been convicted of obstruction. But the Bush administration ordered everyone to cooperate, and it appears that, aside from Libby (if one agrees with the jury's verdict), they did. The administration's conduct in the run-up to the war was not a model of wise behavior. But its response to the CIA leak investigation was.

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

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Byron,

The waivers were a bad idea and the reporters who, by and large—seemingly with the exception of Robert Novak—saw them as coercive and didn't take them seriously were right. I'll gladly join you in seeking to ensure that in fact this investigation does not set a precedent in that regard.

Let's say the Bush administration cooperated with the investigation— something it was sort of stuck with from fall 2003, when the White House wisely buried the case beneath the need for secrecy of an investigation it fully expected would go away, right up until the moment Ashcroft recused himself and a special prosecutor was appointed. But let's say the Bush administration cooperated. That cooperation is hardly equivalent, as you seem to assume, with being open. Open means George W. Bush, Karl Rove and Dick Cheney would not still be hiding behind the pretense of the Libby trial—for goodness sake, the trial is over—to refuse to explain their own roles in the case. Or to explain why, in light of Bush's pledge to get rid of anyone involved, Rove still has a job now that we know he did leak Plame's CIA identity to at least two reporters, serving as Novak's confirming source for the original public outing of Plame in his July 14, 2003 column, and retailing the information at greater length to Matt Cooper of Time magazine a few days later. Maybe Bush should explain how he was parsing his words in fine casuistic fashion and didn't really mean he would fire anyone involved in leaking about Plame, only that anyone who was convicted of knowingly leaking classified information would be fired. (Maybe he should rehire Libby on those grounds?) Or maybe Bush can explain that when his people promised to restore honor and dignity to the White House, they just meant they wouldn't be indicted.

I join your final comments yesterday expressing hope that administration officials explain to Congress how cooperative they were and then testify about their roles in the blowing of Plame's cover. I agree too that after the trial we know some of what happened, but I'd like to hear Cheney confirm what the trial (and pretrial discovery phase) presented convincing evidence of: that Cheney and Libby participated in a very limited—indeed, limited to the two of them— coordinated effort to disclose Plame's CIA status, which they certainly acted for all the world like they understood was sensitive information, to reporters, and that Libby leaked the Plame information to one reporter in particular, Judith Miller of The New York Times, at Cheney's behest. Miller was a sensible choice: no other reporter combined, to the same extent, ideological sympathy with the vice president's worldview and the prominence of a publication venue at the very heart of the MSM. Or, as Libby put it in his grand jury testimony, "I selected Judith Miller because I know her to be a responsible reporter."

Of course, as Libby also acknowledged in the grand jury (while not admitting he was leaking about Plame), the effort to get Miller to publish failed—the vice president's office appears to have been the one place in America where the double-public probation Miller was on at the Times for her irresponsible reporting on Iraqi WMD was unknown. But an inept leak is still a leak, and it would be nice to hear Cheney talk about it openly in public. Do you think he'll cooperate with Congress and testify willingly?

Finally, let me note that the extreme understatement of this—"The administration's conduct in the run-up to the war was not a model of wise behavior."—would be really funny, except it's not.

Best,

Jeff

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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